Cox v Director of Revenue

• Decision Date: 31 May 2002
• Docket Number: WD59189
• Parties: Steven Cox, Respondent v. Director of Revenue, Appellant WD59189 Missouri Court of Appeals Western District 0
• Court: Missouri Court of Appeals

Steven Cox, Respondent v Director of Revenue, Appellant

WD59189

Missouri Court of Appeals Western District

05/31/2002

Appeal From: Circuit Court of Miller County, Hon. Kenneth L. Oswald

Counsel for Appellant: James Artelle Chenault

Counsel for Respondent: Timothy R. Cisar

Opinion Summary: The director of revenue appeals the court's judgment setting aside the suspension of Steven Cox's driving privilege. The court set aside the suspension because it found that the director failed to meet her burden of proof. On appeal, the director argues that she proved, by a preponderance of the evidence, that the officer who arrested Cox had probable cause to believe that Cox was driving while intoxicated.

REVERSED AND REMANDED.

Division Three holds: (1) The court erroneously applied the law by finding that the director failed to make a prima facie case for license suspension. The plain and ordinary meaning of the word "operating," as that term is used in the driving while intoxicated statutes, is to cause to function. Applying this definition to the first prong of the director's prima facie case, the facts and circumstances known to the arresting officer were sufficient to cause a prudent, cautious and trained police officer to reasonably believe that Cox was intoxicated and, as the sole occupant of the vehicle with access to the mechanisms that operate the vehicle, had turned on the engine and was the cause of the engine's continued functioning. Therefore, the director proved by a preponderance of the evidence that the officer had probable cause to arrest Cox for driving while intoxicated.

(2) The director also proved, by a preponderance of the evidence, the second prong of the prima facie case--that Cox had been operating the vehicle while he had a blood alcohol content of more than .10 percent. The only evidence in the record is that Cox had turned on the car's engine at some point, either before or after he arrived in the parking lot, and was the sole cause of the vehicle's continued functioning after he became intoxicated past the .10 percent-level of intoxication.

Dissenting opinion by Judge Ellis:

This author argues and would hold: (1) When it amended section 577.001.1 by deleting the phrase "being in actual physical control" from the definition of "driving," the legislature was aware of the decisions of Missouri's appellate courts in upholding DWI convictions and license suspensions and revocations on the basis of the "actual physical control" language where the defendant or licensee was sitting in a motionless vehicle with the engine running. In subsequently deleting that phrase from the definition, it is clear that the legislature intended to change the law so that an individual no longer could be punished, either criminally or by denial of driving privileges, for simply being in control of a vehicle while in an intoxicated condition.

(2) The majority's definition of "operating" is over-expansive and effectively incorporates those actions previously considered to constitute actual physical control of a vehicle, and the majority thereby renders the legislature's amendment meaningless.

(3) At most, the evidence reflects that Cox was in "physical control" of a running vehicle while intoxicated, an act that no longer should be considered to be driving while intoxicated under the amended statute.

(4) Even were I to accept the majority's reasoning and analysis regarding the definition of "operating," which I emphatically do not, viewing the evidence and all reasonable inferences drawn therefrom in the light most favorable to the court's judgment, Cox cannot be deemed to have been "operating" the vehicle, that is, as defined by the majority, "causing it to function." The evidence showed he merely had been drinking and sleeping in the front seat of a vehicle parked in a private parking lot with its engine running but out of gear and at some point thereafter became legally intoxicated. The functioning of the vehicle would not be affected in any way if Cox were not seated, drinking or asleep therein.

(5) The court was not required to infer that Cox last engaged the engine. The evidence presented at trial failed to establish that anyone else had been in the car and failed to indicate whether any other people were in the area of the parked car.

(6) The court's decision was supported by sufficient evidence, was not against the weight of the evidence and did not erroneously declare or apply the law and, accordingly, should be affirmed.

Patricia Breckenridge, Judge

Opinion:

The Director of Revenue appeals the trial court's judgment setting aside the suspension of Steven Cox's driving privilege. The trial court set aside the suspension because it found that the Director failed to meet her burden of proof.¹ On appeal, the Director contends that she proved, by a preponderance of the evidence, that the officer who arrested Mr. Cox had probable cause to believe that Mr. Cox was driving while intoxicated. This court finds that the Director established that the officer had probable cause to arrest Mr. Cox for driving while intoxicated, and that Mr. Cox was driving while intoxicated. Because the Director made a prima facie case for license suspension, and Mr. Cox failed to rebut the prima facie case, the judgment of the trial court setting aside the suspension is reversed, and the cause is remanded to the trial court to enter an order affirming the suspension.

Factual and Procedural Background

At approximately 10:20 P.M. on August 15, 1998, Officer James A. Upton of the Eldon Police Department responded to a report that a green Cadillac was parked in the parking lot of a gas station at Business 54 and Highway 87 with its light on, the engine running, and no one around. When Officer Upton arrived at the lot, he found the Cadillac's engine running and its transmission in the park position. Officer Upton walked up to the driver's side of the car and saw Mr. Cox sitting in the driver's seat. Mr. Cox was either sleeping or unconscious.

In an attempt to wake up Mr. Cox, Officer Upton knocked on the window. Mr. Cox awoke and was very disoriented. Officer Upton identified himself to Mr. Cox and asked Mr. Cox if everything was all right. Mr. Cox told Officer Upton that he was just sitting there. As Mr. Cox spoke, Officer Upton noticed a strong smell of alcohol on Mr. Cox's breath. Officer Upton also noticed a glass, which was three-quarters full of a brown liquid, sitting between Mr. Cox's legs. When Officer Upton shone his flashlight on Mr. Cox, the officer saw that Mr. Cox's eyes were very bloodshot and watery.

Officer Upton then asked Mr. Cox to shut off the car's ignition and get out of the car so that Officer Upton could perform field sobriety tests on him to make sure that he was able to drive. Mr. Cox turned off the ignition, got out of the car, and agreed to take the field sobriety tests. Officer Upton administered the horizontal gaze nystagmus, the one-leg stand, and the walk-and-turn field sobriety tests on Mr. Cox. Mr. Cox's performance on the horizontal gaze nystagmus test indicated that he was intoxicated.

After Mr. Cox was unable to perform the one-leg stand and the walk-and-turn tests, Officer Upton arrested Mr. Cox for driving while intoxicated and transporting an open container of an alcoholic beverage. Officer Upton took Mr. Cox to the police station, read him his Miranda² rights, and asked Mr. Cox to take a breath test to check his blood alcohol content. Mr. Cox consented, and the test indicated that Mr. Cox had a blood alcohol content of .18%.

Mr. Cox admitted, after he was arrested, that he had been operating his vehicle. He also admitted to Officer Upton that he started drinking whiskey and iced tea at 6:00 P.M., while in his vehicle on Lake Y10. He claimed to have had three drinks. Mr. Cox responded, "No," when asked the time he stopped drinking. Mr. Cox told Officer Upton that in the three hours prior to his arrest at 10:49 P.M., he had been boat riding and sleeping. Mr. Cox said that he "pulled off the road" at 9:00 P.M., and had been sleeping since that time. Mr. Cox was charged with driving while intoxicated and ticketed for transporting an open container of an alcoholic beverage.

Also at that time, pursuant to section 302.520, RSMo 2000,³ Officer Upton served Mr. Cox with a notice that his driving privilege was suspended. Section 302.520 provides that if a law enforcement officer obtains chemical test results while the arrested person is still in custody, and the results show a blood alcohol content of "ten-hundredths of one percent or more by weight," the officer, acting on behalf of the Department of Revenue, "shall serve the notice of suspension or revocation personally on the arrested person." Section 302.505.1 sets forth when the Department can suspend or revoke a driver's license for alcohol-related driving offenses:

The department shall suspend or revoke the license of any person upon its determination that the person was arrested upon probable cause to believe such person was driving a motor vehicle while the alcohol concentration in the person's blood, breath, or urine was ten-hundredths of one percent or more by weight, based on the definition of alcohol concentration in section 302.500, or where such person was less than twenty-one years of age when stopped and was stopped upon probable cause to believe such person was "driving while intoxicated" in violation of section 577.010, RSMo, or "driving with excessive blood alcohol content" in violation of section 577.012, RSMo, or upon probable cause to believe such person violated a state, county or municipal traffic offense and such person was driving with a blood alcohol content of two-hundredths of one percent or more by weight. ⁴

After receiving notice of the suspension of his driving privilege, Mr. Cox requested an administrative hearing. Following the administrative hearing, the Department of Revenue issued findings of...