Flaiz v. Director of Revenue for State

• Decision Date: 20 December 2005
• Docket Number: No. WD 64637.,WD 64637.
• Citation: 182 S.W.3d 244
• Parties: John Kent FLAIZ, Respondent, v. DIRECTOR OF REVENUE FOR the STATE OF MISSOURI, Appellant.
• Court: Missouri Supreme Court

182 S.W.3d 244

John Kent FLAIZ, Respondent, v. DIRECTOR OF REVENUE FOR the STATE OF MISSOURI, Appellant.

No. WD 64637.

Missouri Court of Appeals, Western District.

December 20, 2005.

Motion for Rehearing and/or Transfer to Supreme Court Denied January 31, 2006.

Jeffrey S. Eastman, Gladstone, MO, for respondent.

Jeremiah W. (Jay) Nixon, Atty. Gen., Don Willoh, Assistant Attorney General, Jefferson City, MO, for appellant.

Before: HOWARD, P.J., EDWIN H. SMITH, C.J., and NEWTON, J.

EDWIN H. SMITH, Chief Judge.

The Director of Revenue (Director) appeals from the judgment of the Circuit Court of Platte County setting aside the Director's revocation of the driver's license of respondent, John Flaiz, pursuant to § 577.041,¹ for his refusal to submit to a Breathalyzer test, authorized by § 577.020.

In her sole point on appeal, the Director claims that the trial court erred in reinstating the respondent's driver's license because she made a prima facie case for revocation, in accordance with § 577.041, which was not rebutted by the respondent.

We affirm.

Facts

At approximately 12:30 a.m. on March 22, 2004, Trooper John W. Dick, Jr., of the Missouri State Highway Patrol, was just finishing up a traffic stop near the 64th Street exit of Interstate 29 in Kansas City, Missouri, when he noticed a black Acura approaching from the south, with one headlight out. Trooper Dick pursued the Acura and eventually stopped it. At the time, it was being driven by the respondent. Trooper Dick's vehicle was equipped with a video camera, which recorded the stop and arrest.

After stopping the respondent's vehicle, Trooper Dick exited his vehicle and approached the driver's side window of the Acura. He explained to the respondent that he had stopped him because of an inoperable headlight. After engaging the respondent in conversation, Trooper Dick noticed that his speech was slurred and that his eyes were bloodshot and watery. He also smelled an odor of alcohol emanating from the respondent's vehicle. Trooper Dick asked the respondent for his driver's license and proof of insurance. The respondent handed him his license and registration. The respondent continued to look for his proof of insurance, but was unable to locate it.

Trooper Dick requested that the respondent have a seat in his patrol vehicle. The respondent complied and sat in the front passenger seat, but did not close the door. Trooper Dick and the respondent continued to converse while sitting in the patrol vehicle. Trooper Dick asked the respondent why he was on the road at this time of night. The respondent explained that he had just driven from St. Louis. Trooper Dick asked him whether he had stopped anywhere along the way, and the respondent said, "No." A few minutes later, the respondent mentioned that he had stopped to eat. When Trooper Dick confronted him with this apparent inconsistency in his story, the respondent stated that "he may have just driven through." Trooper Dick asked him whether he had anything to drink that night, and he said, "No." He then asked him if he would submit to a Breathalyzer test. The respondent refused "because it wasn't fair to him." Trooper Dick then requested him to submit to field sobriety tests, which the respondent refused. At that juncture, Trooper Dick informed him that he would be arrested if he continued to refuse to submit to field sobriety tests. The respondent continued to refuse, and he was arrested for driving while intoxicated, DWI.

Having arrested the respondent for DWI, Trooper Dick transported him to the Platte County Jail where he read him the implied consent advisory and again asked him to submit to a Breathalyzer test, which the respondent refused. The respondent was then given Revenue Form 4323, advising him that his driving privileges were being revoked for a one-year period for a Breathalyzer refusal.

Pursuant to § 577.041.3, the Director revoked the respondent's driver's license for his refusal to submit to the Breathalyzer test requested by Trooper Dick. Pursuant to § 577.041.4, the respondent appealed his revocation to the Circuit Court of Platte County. The appeal was heard by the Honorable Daniel Czamanske on August 19, 2004. At the hearing, the only witness to testify on behalf of the Director was Trooper Dick. Trooper Dick's report was introduced into evidence. The respondent did not testify nor call any witnesses on his behalf. The only evidence he offered was the Patrol's videotape of the incident, which was admitted without objection and played in open court. At the close of the evidence, the trial court took the matter under advisement. On August 23, 2004, the trial court, not finding all of the issues specified in § 577.041 to be in the affirmative, specifically, the issue of probable cause to believe that the respondent was DWI, entered judgment for the respondent, ordering the Director to reinstate his driver's license.

This appeal follows.

Standard of Review

We must affirm the judgment of the trial court setting aside the revocation of the respondent's driver's license by the Director, in accordance with § 577.041, unless we find that there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Hinnah v. Dir. of Revenue, 77 S.W.3d 616, 620 (Mo. banc 2002). We will set aside a judgment on the basis that it is against the weight of the evidence only when there is a firm belief that the judgment is wrong. Wilson v. Dir. of Revenue, 35 S.W.3d 923, 926 (Mo.App.2001).

When the Director's "evidence is uncontroverted or admitted so that the real issue is a legal one as to the legal effect of the evidence, then there is no need to defer to the trial court's judgment." Hinnah, 77 S.W.3d at 620. We cannot disregard the Director's uncontroverted evidence and presume that the trial judge found a lack of credibility in order to affirm the judgment. Hockman v. Dir. of Revenue, 103 S.W.3d 382, 386 (Mo.App.2003).

But, where evidence is presented which, if believed, would support a finding in favor of one party, but contrary or inconsistent evidence is also presented, then it is up to the judge to resolve the factual issues, including determining the credibility of witnesses. So long as its determination is supported by substantial evidence, we will affirm, regardless whether we would have reached the same result.

Hampton v. Dir. of Revenue, 22 S.W.3d 217, 220 (Mo.App.2000).

In assessing if there is substantial evidence, we must defer to the trial court on factual issues and cannot substitute our judgment for that of the trial judge. Such deference is not limited to the issue of credibility of witnesses, but also to the conclusions of the trial court. Appellate courts view the evidence in the light most favorable to the trial court's judgment, and we deem all facts to have been found in accordance with the result reached by the trial court. A trial court is accorded wide discretion even if there is evidence that would support a different result. In a driver's license revocation case, a trial court has the prerogative when weighing witness credibility, to accept or reject all, part, or none of the testimony of any witness.

Long v. Dir. of Revenue, 65 S.W.3d 545, 548 (Mo.App.2001) (internal citations omitted).

I.

In her sole point on appeal, the Director claims that the trial court erred in reinstating the respondent's driver's license because she made a prima facie case for revocation, in accordance with § 577.041, which was not rebutted by the respondent. Specifically, she claims that the trial court's reinstatement of the respondent's driver's license was not supported by substantial evidence and was against the weight of the evidence in that the respondent did not present any evidence controverting the evidence, on which her prima facie case for revocation was based.

Section 577.041.3 mandates that the Director revoke, for one year, the driver's license of a person under arrest for DWI for refusing, when requested by the arresting officer, to submit to a chemical test, authorized by § 577.020. Pursuant to § 577.041.4, "[i]f a person's license has been revoked because of the person's refusal to submit to a chemical test, [as authorized by § 577.020], such person may petition for a hearing before a circuit or associate circuit court in the county in which the arrest or stop occurred."

In order to make a prima facie case for upholding a § 577.041 revocation for a refusal in a DWI case, the Director is required to show that: (1) the driver was arrested; (2) the arresting officer had reasonable grounds to believe the driver was DWI; and (3) the driver refused to submit to an authorized chemical test as requested. § 577.041.4; Hinnah, 77 S.W.3d at 620. If the court determines any of the three elements of the Director's case for revocation not to be in the affirmative, it shall order the Director to reinstate the driver's license. § 577.041.5; Hinnah, 77 S.W.3d at 620. "The director, thus, has the burden of proof at the hearing." Hinnah, 77 S.W.3d at 620.

While the respondent did not contest at the § 577.041 hearing that he was arrested and refused to submit to the Breathalyzer test, as requested by the arresting officer, Trooper Dick, he did contest the fact that Trooper Dick had reasonable grounds to believe he was DWI. On appeal, the respondent does not contest the fact that the Director made a prima facie case for revocation. However, he contends that the evidence was sufficient for the trial court to find that the Director's prima facie case was rebutted; specifically, that the evidence was sufficient for the trial court to find that Trooper Dick did not have reasonable grounds to believe the appellant was DWI. The Director claims that such a finding was not supported by substantial evidence and was against the weight of the evidence in that the respondent failed to controvert the evidence on which the Director's ...