Craig v. Dir. of Revenue

• Docket Number: WD85515
• Decision Date: 16 January 2024
• Parties: DELANEY SHAY CRAIG, Appellant, v. DIRECTOR OF REVENUE, Respondent.
• Court: Missouri Court of Appeals

1

DELANEY SHAY CRAIG, Appellant,
v.
DIRECTOR OF REVENUE, Respondent.

No. WD85515

Court of Appeals of Missouri, Western District

January 16, 2024

Appeal from the Circuit Court of Clay County, Missouri Honorable Karen Lee Krauser, Judge

Before Court en banc: Gary D. Witt, Chief Judge Presiding, Lisa White Hardwick, Alok Ahuja, Mark D. Pfeiffer, Karen King Mitchell, Cynthia L. Martin, Anthony Rex Gabbert, Edward R. Ardini, Jr., Thomas N. Chapman, W. Douglas Thomson, and Janet Sutton, Judges

EN BANC

OPINION

JANET SUTTON, JUDGE

Delaney Shay Craig (Craig) appeals the judgment of the Circuit Court of Clay County, Missouri (trial court) sustaining, following a trial de novo from an administrative hearing, the Director of Revenue's (Director) determination to suspend or revoke Craig's driving privileges pursuant to section 302.505.^[1] On appeal, Craig claims that the trial court erred in: (1) finding that she was arrested upon probable cause to believe that she was intoxicated in that her arrest in Clay County was improperly made by a Ray County deputy (Ray Deputy); (2) admitting

2

evidence that Ray Deputy allowed Craig an opportunity to contact an attorney after advising her of Missouri's Implied Consent because such evidence did not appear in his written report; and (3) quashing Craig's subpoena to the Director for production of documents that Craig purportedly offered at the administrative hearing as a Department of Revenue record under section 302.312 or as a business record under sections 490.660 through 490.692. We affirm the trial court's judgment.

Factual and Procedural Background

On February 21, 2021, at about 1:22 a.m., a Lawson police officer (Officer), who was on patrol, observed Craig fail to stop at a stop sign. Officer stopped Craig in the City of Lawson^[2] in Clay County, and he could smell an odor of marijuana coming from the vehicle. Officer noted that Craig had a passenger who appeared to be highly intoxicated. Officer asked Craig to surrender her marijuana, and she responded that she did not have much and that it was not illegal. Officer asked Craig to exit the vehicle so he could conduct a search. Craig was very uncooperative, refusing to comply with Officer's requests, demanding to speak to his "chief," and accusing him of abusing his power. At this time, Officer informed Craig that he was arresting her for resisting arrest; he handcuffed her and led her to his car and called for backup. While Craig was in his vehicle, Officer became increasingly suspicious that Craig was also impaired, due to her slight slurs of speech, her repetitive storytelling, and her inability to "keep a train of thought."

When Ray Deputy from the Ray County Sheriff's Department responded to the call for assistance, Officer asked Ray Deputy to assess Craig's ability to drive, as he had had more experience testing for marijuana impairment. Meanwhile, Officer and another officer who had

3

responded to the call for assistance conducted a search of Craig's car, which revealed marijuana, a grinder, and a donut-shaped smoking device. They also found open containers of alcohol in the vehicle.

Ray Deputy testified that he conducted several standard field sobriety tests (SFSTs). He also performed a preliminary breath test (PBT) at the site, with Craig's passenger and another officer observing the administration of the PBT. The PBT was positive for alcohol, and Ray Deputy noticed a moderate odor of alcohol coming from Craig's person. At this point, Ray Deputy arrested Craig for driving while intoxicated, and he transported her to the Ray County Jail to perform a breathalyzer test. Ray Deputy testified that he followed "the checklist" that pertained to breath tests, including giving Craig an opportunity to contact an attorney after he read her the notice pursuant to the Implied Consent statute, section 577.041. Ray Deputy testified that Craig did "not want an attorney at that point." Ray Deputy did not note in his alcohol influence report (AIR) his offer to allow her to contact counsel or Craig's waiver of her right to contact an attorney. At trial, Craig's counsel moved to strike this portion of Ray Deputy's testimony because it was not reflected in the AIR, which according to section 302.510.1, counsel argued, should contain "all information relevant to the enforcement action." The trial court denied this motion, finding that it was an issue of credibility.

In an effort to counter Ray Deputy's testimony, Craig sought to admit into evidence her affidavit that was purportedly admitted in the prior administrative hearing. She first offered the affidavit into evidence at the trial de novo. The Director objected, and the trial court sustained the objection, stating the affidavit would not be received because Craig was present and available to testify. Craig requested a continuance of the hearing for further evidence which was granted. Craig then sought to have the affidavit admitted by subpoenaing the Director's custodian of

4

records for: all records introduced into evidence at the administrative hearing to include the Director's file, Craig's objections to the Director's file, Craig's evidence, exhibits and suggestions, and any transcript or recording of the hearing. The Director filed a motion to quash the subpoena. At a hearing on the motion to quash, Craig argued that because it was part of the evidence at the administrative hearing, it should be admitted as a record of the Department of Revenue under section 302.312 or as a business record under sections 490.660 through 490.692. The Director argued that the purpose of section 302.312 was for the admission of Department of Revenue and police records "properly certified by the custodian or the director" without requiring testimony as to their foundation and authenticity. The Director further argued that Craig's affidavit, prepared by her and her counsel well after her arrest, was not a record of the Department of Revenue that could be certified, was self-serving, and was not the best evidence because Craig was present and could testify. The trial court quashed the subpoena in part, ordering the Director to provide its entire file, and all transcripts from the administrative hearing but finding that Craig's affidavit was not a part of that file and quashing that portion of the subpoena. The remainder of the trial de novo hearing was rescheduled. When the hearing resumed, Craig chose not to testify and presented no further evidence.

The trial court issued its judgment finding that the Director had shown, by a preponderance of the evidence, that Craig had been arrested upon probable cause that she had committed an alcohol-related traffic offense and that Craig had been driving a motor vehicle with a blood alcohol concentration of .08 percent or higher and, therefore, that the Director's determination to suspend or revoke Craig's driving privileges was sustained.

This appeal follows.

5

Standard of Review

The standard of review we apply in an appeal from a trial court's judgment in a license revocation case under section 302.535 is that of any court-tried case and is set forth in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). White v. Dir. of Revenue, 321 S.W.3d 298, 307-08 (Mo. banc 2010). We will affirm the trial court's judgment unless there is no substantial evidence to support it, it is against the weight of the evidence, it erroneously declares the law, or it erroneously applies the law. Id. "In reviewing a particular issue that is contested, the nature of the appellate court's review is directed by whether the matter contested is a question of fact or law." Id. at 308. "When the facts relevant to an issue are contested, the reviewing court defers to the trial court's assessment of the evidence." Id. "A trial court's decision to admit or exclude evidence is reviewed for an abuse of discretion." Manzella v. Dir. of Revenue, 363 S.W.3d 393, 395 (Mo. App. E.D. 2012) (internal quotation omitted). "We will find an abuse of discretion only when the trial court's ruling is clearly against the logic of the circumstances, is so arbitrary and unreasonable as to shock the sense of justice, and shows a lack of careful consideration." Id.

Legal Analysis

Validity of Arrest:

Craig's first point on appeal is that the trial court erred in ruling that Craig's arrest by Ray Deputy in Clay County was valid because a Ray County officer did not have the power and authority to arrest her in Clay County. But as the trial court recognized, the arresting officer's authority to arrest is not usually an issue in revocation cases because the actions are civil in nature, and therefore the exclusionary rule does not apply. Stanton v. Dir. of Revenue, 616 S.W.3d 398, 404 (Mo. App. W.D. 2020). Stanton cites Kimber v. Director of Revenue, 817 S.W.2d 627, 632 (Mo. App. W.D. 1991), where

6

this court found that an arrest by a fourth class city police officer outside the city was unlawful, but that the evidence relating to arrest and the subsequent breath test results were admissible in an action to suspend the driver's license pursuant to sections 302.500 to 320.540, because the exclusionary rule does not apply in civil proceedings.

Stanton, 616 S.W.3d at 404. Stanton concluded that while the driver's arrest "outside of Clinton County may not have withstood Fourth Amendment scrutiny in a criminal case, it did not divest him of his status as a law enforcement officer, and did not prevent the Director from revoking Stanton's driver's license." Id. at 406.^[3]

Craig's brief argues that Stanton does not apply because she is not relying on the exclusionary rule but rather Missouri substantive law that an officer outside of his jurisdiction loses any powers to arrest, rendering him a private citizen. Craig is, in essence, arguing that the invalidity of her arrest justifies the trial court's exclusion of any evidence...