Edwards v. Director of Revenue, State

• Decision Date: 03 November 2009
• Docket Number: No. SD 29451.,SD 29451.
• Citation: 295 S.W.3d 909
• Parties: Robert EDWARDS, Appellant, v. DIRECTOR OF REVENUE, STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

295 S.W.3d 909

Robert EDWARDS, Appellant, v. DIRECTOR OF REVENUE, STATE of Missouri, Respondent.

No. SD 29451.

Missouri Court of Appeals, Southern District, Division One.

November 3, 2009.

John M. Albright and Daniel T. Moore, Moore, Walsh & Albright L.L.P., Poplar Bluff, for Appellant.

James L. Spradlin, Jefferson City, for Respondent.

Before BATES, P.J., SCOTT, C.J., and BURRELL, J.

PER CURIAM.

Robert Edwards ("Driver") appeals from the trial court's judgment affirming a revocation of his driving privileges by the Director of Revenue ("the Director") after Driver refused to submit to a blood alcohol test, pursuant to §§ 577.020.1(1) and 577.041.4.¹ Driver argues that (1) there were no reasonable grounds for the arresting officer to believe Driver was intoxicated at the time of his one-vehicle accident, and (2) he was not arrested before being read the implied consent warning mandated by § 577.041. We affirm.

We "will affirm the trial court's judgment unless there is no substantial evidence to support it, unless the decision is contrary to the weight of the evidence, or unless the trial court erroneously declares or applies the law." Verdoorn v. Dir. of Revenue, 119 S.W.3d 543, 545 (Mo. banc 2003). "In reviewing the judgment, we view the evidence and all reasonable inferences drawn therefrom in the light most favorable to the judgment and disregard all evidence and inferences to the contrary." Callendar v. Dir. of Revenue, 44 S.W.3d 866, 868 (Mo.App.2001).

While we defer to the trial court's determinations regarding credibility, when the evidence supporting revocation is uncontroverted or admitted so that the real issue is a legal one as to the legal effect of the evidence, there is no need to defer to the trial court's judgment. Hinnah v. Dir. of Revenue, 77 S.W.3d 616, 620 (Mo. banc 2002). When the evidence is such that it could support two different conclusions depending on the weight given the evidence by the trial court, the appellate court defers to the judgment of the trial court. Furne v. Dir. of Revenue, 238 S.W.3d 177, 182 (Mo.App.2007).

"Under section 577.041, a person who refuses to take a breath test shall have [his or her] license revoked, but that person may request a hearing for review before a court in the county in which the stop or arrest [was made.]" Dixon v. Dir. of Revenue, 118 S.W.3d 302, 305 (Mo.App. 2003). At such a hearing, the trial court can only determine (1) whether the person was arrested or stopped; (2) whether the officer had reasonable grounds to believe the person was driving a motor vehicle in an intoxicated condition; and (3) whether the person refused to submit to the chemical test. Guhr v. Dir. of Revenue, 228 S.W.3d 581, 584 (Mo. banc 2007); Hinnah, 77 S.W.3d at 620. "If the [trial] court determines any issue not to be in the affirmative, the court shall order the Director to reinstate the license or [the] permit to drive." Hinnah, 77 S.W.3d at 620. The Director bears the burden of proof at the hearing. Id.; see Swanberg v. Dir. of Revenue, 122 S.W.3d 87, 90 (Mo.App.2003).

At around 8:30 p.m. on October 19, 2007, Officer Freeman of the Missouri State Highway Patrol responded to a one-vehicle accident on Highway 21 in Reynolds County. Driver, who was injured, was awaiting transport to the hospital when Officer Freeman arrived. Officer Freeman had "just a very, very short meeting" with Driver prior to Driver leaving the scene in an ambulance. While at the scene, Officer Freeman observed that Driver's vehicle appeared to have "traveled off the right side of the roadway. [Driver] had overcorrected and skidded off the left side of the roadway before overturning the vehicle." Officer Freeman found beer cans in and around the vehicle, some still cold to the touch. He specifically noticed several cans in the vehicle's cab, others next to the vehicle, and some empties that apparently had come out of the truck's bed. Some of the beer was unopened, some cans had burst open, and some were spraying beer from slight holes in the cans. Officer Freeman observed that the accident occurred in "a fairly straight portion of the roadway" and "[t]here didn't seem to be any reason at the scene that the vehicle would have been overcorrected so much." Deputy Stoops, the first officer to reach the accident, told Officer Freeman that Driver, who was being transported to the hospital, appeared to have been drinking and "very intoxicated."

Officer Freeman went to the hospital to speak with Driver. When Officer Freeman spoke with Driver, an hour or two after the accident, Driver was "still on the backboard from the ambulance on a gurney ... inside the emergency room." Driver told Officer Freeman the accident occurred when he came across four or five deer in the roadway and he swerved to avoid them. Officer Freeman immediately noticed "a faint odor of intoxicants. I noticed [Driver's] eyes were watery and bloodshot. He was fairly combative with the hospital staff and the family members. ..." Officer Freeman smelled alcohol both on Driver's clothing and on his breath. He described Driver's speech as "slurred, loud, aggressive" and he was using a great deal of profanity.

In due course, Driver was taken away for x-rays for some two hours. Upon Driver's return, Officer Freeman asked him to take a portable breathalyzer test to determine his blood alcohol level. In response, according to Officer Freeman, Driver "caused a scene with his son. He was asking to take ... a chew of tobacco. Refused to take [the breathalyzer] unless he could have a chew of tobacco while he was taking it." Officer Freeman advised Driver, who was being "[a]ggressive or combative," that he could not chew tobacco before taking the breathalyzer. Officer Freeman also sought to employ the horizontal gaze nystagmus and other field sobriety tests, all of which Driver refused.

Officer Freeman then read Driver the "checklist on the Implied Consent [form]" found on page 2 of the Alcohol Influence Report ("AIR"), which advised Driver that he was under arrest; requested him to submit to a chemical test; warned him that if he refused to take the test his driver's license would immediately be revoked for a year; and warned him that evidence of his refusal to take the test could be used against him in a prosecution in a court of law. Driver repeated that he would not submit to a test of his breath or blood for alcohol. Driver signed the form entitled "Refusal to Submit to Alcohol/Drug Chemical Test[,] Notice of Revocation of your Driving Privilege[,] 15 Day Driving Permit." Officer Freeman then "issued [Driver] his 15-day driving permit" and explained "what he needed to do to get his ... hearing to get his driver's license back." Having been there "for a long time," Officer Freeman finally departed the hospital, mailing Driver a DWI ticket and summons several days later.

Pursuant to § 577.041.3 the Director revoked Driver's driving privileges for one year and Driver sought review in the circuit court. After a hearing at which Driver presented no evidence, the trial court ruled in favor of the Director.

Point I

Driver claims the trial court erred in finding "there were reasonable grounds to believe [he] was intoxicated" because

[Driver], who was run-off the road by deer, never admitted to drinking and, as [Officer Freeman] admitted, the odor of alcohol was explained by the ruptured cans spraying beer, bloodshot eyes are, at best, a thin clue, 90 [percent] of grown men cuss, which has nothing to do with intoxication, and [Driver's] combative behavior could well have been due to a head injury.

In determining whether an officer has reasonable grounds to revoke a person's driving privileges under § 577.041, a trial court must necessarily determine whether the arresting officer had reasonable grounds to believe the individual was driving while intoxicated. § 577.041. "Reasonable grounds and probable cause are essentially synonymous terms. Probable cause exists when an arresting officer `possesses facts which would justify a person of reasonable caution to believe that an offense has been or is being committed and that the individual to be arrested committed it.'" Routt v. Dir. of Revenue, 180 S.W.3d 521, 523 (Mo.App.2006)(quoting Saladino v. Dir. of Revenue, 88 S.W.3d 64, 70 (Mo.App.2002))(internal citation omitted); see Ethetton v. Dir. of Revenue, 182 S.W.3d 260, 263-64 (Mo.App.2006). In making a determination of whether a police officer has probable cause to believe a person is driving while intoxicated, the trial court "must evaluate the evidence from the viewpoint of a cautious, trained, and prudent police officer at the scene at the time of the arrest." Jones v. Dir. of Revenue, 204 S.W.3d 709, 712 (Mo.App.2006); see Hinnah, 77 S.W.3d at 621. "Even where an officer does not administer field sobriety tests, he may obtain probable cause to believe that the suspect is intoxicated from other sources of information." Saladino, 88 S.W.3d at 70-71. What is at issue in a refusal case is whether the officer had reasonable grounds to believe the driver was intoxicated, not whether he was actually intoxicated. Flaiz v. Dir. of Revenue, 182 S.W.3d 244, 248 (Mo.App.2005).

Here, there were several facts which support the trial court's conclusion that Officer Freeman had probable cause to believe Driver had been driving while intoxicated. First, Officer Freeman testified that he detected a faint odor of intoxicants not only on Driver's person, but also coming from his breath. See Brown v. Dir. of Revenue, 164 S.W.3d 121, 126 (Mo. App.2005)(odor of intoxicants as indicia of intoxication). Second, there were both empty and cold, unopened beer cans at the accident scene. See Saladino, 88 S.W.3d at 71 (empty beer cans as indicia of intoxication). Third, Officer Freeman testified that Driver's eyes were watery and bloodshot. See Flaiz, 182 S.W.3d at 249 (watery and bloodshot eyes as indicia of intoxication). Fourth, Officer Freeman testified...