Dalton v. McNeill

• Decision Date: 01 July 1986
• Docket Number: No. WD,WD
• Citation: 713 S.W.2d 26
• Parties: William J. DALTON, Appellant, v. Paul S. McNEILL, Jr., Director, Missouri Department of Revenue, Respondent. 37549.
• Court: Missouri Court of Appeals

Page 26

713 S.W.2d 26

William J. DALTON, Appellant, v. Paul S. McNEILL, Jr., Director, Missouri Department of

Revenue, Respondent.

No. WD 37549.

Missouri Court of Appeals,

Western District.

July 1, 1986.

Ken Seck, Leon B. Seck, Seck & Seck, Overland Park, Kan., for appellant.

William Webster, Atty. Gen., James A. Chenault, III, Asst. Atty. Gen., for respondent.

Before SHANGLER, P.J., and DIXON and LOWENSTEIN, JJ.

SHANGLER, Presiding Judge.

The appellant Dalton was arrested and cited for the violation of a municipal ordinance which prohibited the physical control of a motor vehicle by a person under the influence of intoxicating liquor. His license to drive was suspended under the procedures of §§ 302.500 to 302.540, RSMo Cum.Supp.1984, and Dalton appeals the affirmance of the order of suspension on trial de novo.

The manager of a McDonald's restaurant reported that a car was stopped in the drive-through lane, engine running, with the man inside "passed out behind the wheel." It was then about one in the morning. Officer Gardner was first on the scene and found Dalton behind the wheel of the car, "head against the steering wheel, obviously passed out." The engine continued to run, and the gearshift was in the drive position. He turned off the ignition and, with difficulty, roused Dalton. Gardner was then on duty as a supervisor of a DWI project, and hence called for another officer to assist. Gardner did observe that the clothing of the car occupant was mussed, and a strong odor of alcohol was about him. Inside the car, the floor was strewn with beer cans, and a quantity of beer was spread on the floorboard so that the interior gave off an odor of beer. Gardner reached the opinion that Dalton was intoxicated.

Officer Matt then arrived at the scene. He administered two field sobriety tests: the hand to nose and straight line balance routines, neither of which Dalton was able to perform. His fingertip missed the nose on both attempts, and he stumbled to fall as he attempted the balance procedure. A strong odor of alcohol persisted on his breath and clothing. He was unable to understand directions without several repetitions. His eyes were noticeably dilated. Officer Matt then advised Dalton he was under arrest "for being in physical control of a motor vehicle while under the influence of intoxicating liquor, and charged him formally with the violation of Kansas City, Missouri ordinance § 34.116(b). Dalton was then taken to the police station where Officer Matt administered a breathalyzer test. The analysis registered a blood alcohol concentration of nineteen hundredths of one percent.

On appeal, Dalton contends the suspension procedures under §§ 302.500 to 302.540 do not apply to nonmoving violations and that, cognately, the probable cause requirement of § 302.505 was not satisfied. To sustain these contentions, Dalton cites provisions from §§ 302.500 to 302.540 and of §§ 577.001 to 577.060, RSMo Cum.Supp.1984.

The first enactment [§§ 302.500 to 302.540] delineates the administrative procedure for the suspension and revocation of a driver's license by the Director of the Department of Revenue. That enactment provides for the suspension of revocation upon the administrative determination that the person was arrested upon probable cause to believe he was "driving a motor vehicle while the alcohol concentration in the ... blood or breath was thirteen-hundredths of one percent or more by weight of alcohol in his blood." [§ 302.505.1, emphasis added]. That enactment also requires a law enforcement officer who arrests any person for the violation of § 577.010 [Driving while intoxicated] or of § 577.012 [Driving with excessive blood alcohol content] or of a county or municipal ordinance "prohibiting driving while intoxicated or a county or municipal alcohol related traffic offense" in which the alcohol concentration in the blood or breath was thirteen-hundredths of one percent or more by weight to report that enforcement action to the department of revenue. [§ 302.510.1, emphasis added].

The second enactment, offenses against public safety chapter 577, declares--as noted--that a person who operates a motor vehicle while in an intoxicated condition commits the crime of "Driving while intoxicated" [§ 577.010, emphasis added], and a person who operates a motor vehicle with ten-hundredths of one percent or more by weight in the blood commits the crime of "Driving with excessive blood alcohol content." [§ 577.012, emphasis added]. Another section of offenses against public safety chapter 577, for purposes of prior offender and persistent offender prosecutions, defines intoxication related offense as: "driving while intoxicated, driving with excessive blood alcohol content, or driving under the influence of alcohol or drugs in violation of state law." [§ 577.023.1(1), emphasis added].

It is the sense of argument on appeal that driving as used in these enactments means moving, and since the vehicle Dalton occupied at the time of arrest was not moving, there was no probable cause to believe he was driving in the condition of blood alcohol requisite to induce arrest under § 302.505.1. It is the sense of the argument on appeal, a fortiori, that a conviction for the physical control of a motor vehicle by a person, albeit intoxicated, cannot activate the suspension or revocation procedures of §§ 302.500 to 302.540 where the vehicle is not in motion.

It is so that the term driving is not defined in the suspension and revocation of license §§ 302.500 to 302.540. But the purpose of that enactment is to deny the motor vehicle license privilege to a person arrested on probable cause [and later validated] of driving while intoxicated or of the violation of an alcohol related offense in the proscribed condition of blood alcohol concentration, and not to define substantive offenses. That is left to the state, court and municipal legislatures. § 302.510. The probable cause § 302.505 requires to be shown as prelude to the verification of the blood alcohol concentration requisite to invoke the...