Duffy v. Director of Revenue

• Decision Date: 07 April 1998
• Docket Number: No. WD,WD
• Citation: Duffy v. Director of Revenue, 966 S.W.2d 372 (Mo. App. 1998)
• Parties: Dianna Lynn DUFFY, Appellant, v. DIRECTOR OF REVENUE, Respondent. 54165.
• Court: Missouri Court of Appeals

Page 372

966 S.W.2d 372

Dianna Lynn DUFFY, Appellant, v.DIRECTOR OF REVENUE, Respondent.

No. WD 54165.

Missouri Court of Appeals Western District.

April 7, 1998.

Michael W. Hanna, Raytown, for Appellant.

Jeremiah W.(Jay) Nixon, Atty. Gen., Laura M. Vogel, Asst. Atty. Gen., Jefferson City, for Respondent.

Before EDWIN H. SMITH, P.J., and SMART and ELLIS, JJ.

EDWIN H. SMITH, Judge.

Dianna Lynn Duffy appeals the circuit court's judgment upholding the administrative revocation of her driving privileges by the Director of Revenue (Director), pursuant to § 577.041.3¹, for her refusal to submit to a second chemical test following her arrest for driving while intoxicated.

The appellant raises three points on appeal.She claims that the trial court erred in affirming the administrative revocation of her driving privileges in that: (1) it allowed the police officers to testify as to their observations of her behavior, the sobriety tests conducted by them and their results, and their opinion concerning her intoxicated condition, all of which was offered by the Director to establish reasonable grounds that she was driving while intoxicated as required by § 577.041.4(2), because their testimony was inadmissible in that the Director failed to lay a proper Frye foundation for the admission of their testimony; (2) it allowed one of the police officers to testify regarding the results of the appellant's horizontal gaze nystagmus (HGN) test, also offered to establish reasonable grounds that she was driving while intoxicated, because the HGN test result was inadmissible in that the Director failed to lay a proper foundation for its admission by showing that it was properly administered; and, (3) because there was no substantial evidence to support the decision of the trial court, it was against the weight of the evidence, and it erroneously declared and applied the law as to § 577.041.4, in that: (a) the police officer who conducted the second chemical test did not have reasonable grounds to believe she was driving while intoxicated; and, (b) her failure to take the second chemical test was not a "refusal" in that the required warning as to the consequences of a refusal, as required under the implied consent law, was inadequate.

We affirm.

Facts

On June 21, 1996, Officer James Agnew of the Kansas City, Missouri, Police Department stopped the appellant's car because she had expired license plates.As he was waiting to notify the dispatcher of the stop, the appellant stepped out of her car and started to walk back to his vehicle.Officer Agnew told her to have a seat and that he would be with her in a few minutes.Approximately ten minutes later, the appellant again stepped out of her car and walked about six to eight feet away from it, swaying, then turned and looked at Officer Agnew.She was moving her arms, fidgeting, putting her hands around her hair and adjusting her hat, swaying, and swinging her arms.Officer Agnew again told her to return to her vehicle.He testified at trial that after he contacted his dispatcher, he requested the appellant to step out of her car and gave her an HGN test.

Officer Agnew testified that he had approximately 40 hours of training to determine whether an individual was under the influence of alcohol.In his four and one-half years as a police officer, he had arrested hundreds of individuals for alcohol-related traffic offenses.He had also come in contact with individuals who were under the influence of a controlled substance approximately 12 to 20 times.He testified regarding various observations which would lead him to believe that an individual was under the influence of a controlled substance, such as cocaine causes certain physical behaviors, some of which resemble a person under the influence of alcohol.If he believed an individual was under the influence of a drug, he would administer the field sobriety tests and, upon failure, he would place the individual under arrest and have him or her take a breathalyzer test.If the breathalyzer determined the individual was under the legal limit for alcohol, he would call in a drug recognition expert or request a urine or blood sample.

Officer Agnew further testified that he was trained to perform the HGN test while in the police academy.He explained how the HGN test was administered by stating that when the subject's eyes bounce or jump, it means that the individual is under the influence of alcohol or some drug.He has conducted this test hundreds of times during his tenure as a police officer.He testified that there are three possible deviation points for each eye.He concluded that the appellant had failed the HGN test.However, he was not aware that an individual had to fail three or more of the six possible deviations before he or she failed the test.

Officer Agnew testified that during the one-leg stand test, the appellant swayed and used her arms for balance.He also smelled a faint odor of alcohol.He acknowledged that the appellant's pupils were normal, her speech coherent, and that he marked "okay" on the walk-and-turn test.At the time he saw appellant drive her car, her ability to operate a vehicle was not impaired.He testified that, based on the appellant's physical actions and failure of two field sobriety tests, he believed she was under the influence.After arresting the appellant, Officer Agnew contacted Officer Ralph Stewart from the unit to determine whether the appellant was, in fact, under the influence.

Officer Stewart had been a police officer for 21 years and held a Type II operator's, instructor's and trainer's permit from the Missouri Department of Health signifying extensive training of 140 hours on how to detect drivers under the influence, perform physical tests, field sobriety tests, and breathalyzer tests.He also held an instructor's permit on field sobriety training issued by the International Association of Chiefs of Police.Officer Stewart had special training to determine whether an individual is under the influence of a controlled substance consisting of a 24-hour introductory school and a 72-hour intensive school in drug recognition.He passed a comprehensive six-hour examination administered by the International Association of Chiefs of Police.In addition, he was a certified recognition expert for a total of 15 drug recognition exams, covering a minimum of five of the seven categories of controlled substances, including alcohol.

Officer Stewart requested the appellant to submit to a breathalyzer test under the implied consent law.He informed the appellant that she was under arrest and that to determine the alcohol content of her blood, he was requiring her to submit to a chemical test of her breath.He explained that if she refused to take the test, her driver's license would immediately be revoked for one year, that he would confiscate any valid license she had, and told her refusal to take the test or tests may be used against her in prosecution in a court of law.He further explained to her that he was asking her to take the test because she was stopped for having expired tags and that Officer Agnew noticed a faint odor of alcohol on her and believed she had failed to pass field sobriety tests.The results of appellant's breathalyzer test was .000. After restating the implied consent language, Officer Stewart requested the appellant take a urine test.The appellant did not take the urine test as requested.

During his observation of the appellant, Officer Stewart testified that her pupils appeared normal, but were fairly glassy.He administered another HGN test which the appellant passed.He also stated that the appellant's temperature was within normal limits, but her pulse and blood pressure were at the upper levels thereof.The appellant informed Officer Stewart that she had been in a car accident and broke her jaw which caused the bruxism she exhibited.Officer Stewart concluded that the appellant was under the influence of a controlled substance.

The appellant testified that she was informed that she needed to take only one test, the breathalyzer, which she did.She was under the impression that she did not need to take any additional tests.She further stated that she had not taken any drugs prior to operating her vehicle on the night in question.During cross-examination by the Director, the appellant admitted that she refused to take a urine test.

At the close of the evidence, the circuit court upheld the administrative revocation of the appellant's driving privileges, pursuant to § 577.041, following her arrest for driving while intoxicated.

This appeal follows.

Standard of Review

Our review of a trial court's judgment upholding the decision of the administrative hearing officer to suspend or revoke an appellant's driving privileges, pursuant to § 577.041.3, is governed by Murphy v. Carron, 536 S.W.2d 30, 32(Mo. banc 1976).Hawk v. Director of Revenue, 943 S.W.2d 18, 19-20(Mo.App.1997).We must affirm the judgment unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law.Id.

I.

In Point I, the appellant claims that Officer Agnew's and Officer Stewart's testimony as to their field observations of her and her behavior, the sobriety tests conducted by them and their results, and their opinions concerning her intoxicated condition were inadmissible to satisfy the requirement of § 577.041.4(2) that the arresting officer had reasonable grounds to believe she was driving a motor vehicle in an intoxicated condition, because the Director failed to lay a Frye ² foundation for the admission of their testimony in that the Director did not show that the tests conducted had gained general acceptance in the scientific community.The Director contends that the trial court did not err in permitting the officers' testimony because, to be admissible on the issue of reasonable grounds to...