Gallagher v. Mo. Dep't of Revenue

• Decision Date: 21 July 2020
• Docket Number: No. ED 108485,ED 108485
• Citation: 604 S.W.3d 372
• Parties: Timothy GALLAGHER, Appellant, v. MISSOURI DEPARTMENT OF REVENUE, Respondent.
• Court: Missouri Court of Appeals

604 S.W.3d 372

Timothy GALLAGHER, Appellant,

v.MISSOURI DEPARTMENT OF REVENUE, Respondent.

No. ED 108485

Missouri Court of Appeals, Eastern District, DIVISION TWO.

Filed: July 21, 2020

FOR APPELLANT: Christopher M. Combs, 8820 Ladue Road, Suite 201, Ladue, MO 63124, Thomas R. Kissell, 7733 Forsyth Boulevard, 11^th Floor, Clayton, MO 63105.

FOR RESPONDENT: Eric W. McDonnell, 301 West High Street, Jefferson City, Missouri 65105.

Philip M. Hess, Presiding Judge

Introduction

Timothy Gallagher ("Appellant") appeals the trial court's judgment upholding the Director of Revenue's ("Director") revocation of his driving privileges under section 577.041 for refusing to submit to a breath test.¹ Appellant's sole point on appeal is the trial court erred in sustaining the revocation because there was insufficient evidence to support a finding of probable cause to believe Appellant drove while intoxicated. He contends the Director failed to present evidence as to Appellant's condition while operating a motor vehicle at the time of the accident. He argues the arresting officer, Officer Robert Berry, did not witness Appellant driving, the accident itself, or Appellant's condition.

We find the trial court did not err in finding Officer Berry had probable cause to believe Appellant was driving while intoxicated. The Director presented ample evidence to meet her burden. Accordingly, we affirm.

Factual and Procedural Background²

Just before midnight on February 23, 2019, Officer Berry responded to a vehicle crash on Breezeview Drive in Ballwin, Missouri. On arrival, Officer Berry observed a vehicle consumed in flames, a broken mailbox, and two damaged vehicles in a driveway on Breezeview Drive. Officer Berry spoke with two residents of the house, Appellant's parents. Appellant's father stated Appellant was driving and crashed, sustaining an injury to his head

. Appellant's parents stated Appellant was inside. Officer Berry continually asked to speak with Appellant, but Appellant's parents refused. Officer Berry asked Appellant's parents if Appellant had been drinking. Appellant's father remained silent, but Appellant's mother nodded her head in an up and down motion. Moments later, Officer Berry overheard Appellant's father tell a neighbor Appellant was driving on Amber Jack Road, the adjacent road to Breezeview, before crashing into the driveway. Officer Berry's supervisor then spoke with Appellant's parents. Approximately 15 minutes after Officer Berry's arrival, Appellant's parents allowed him to speak with Appellant.

Officer Berry noted scratches and a cut on Appellant's face. Officer Berry noted Appellant's eyes were watery, glassy, and slightly bloodshot. Officer Berry also smelled a moderate odor of alcohol emitting from Appellant's breath. Officer Berry escorted Appellant to an ambulance noticing Appellant was unsteady on his feet. Appellant then refused further medical attention. Appellant was transferred to the police department. Officer Berry continued to smell alcohol emitting from Appellant's breath at the station and noted Appellant slurring his speech. Appellant consented to the Standard Field Sobriety Test. The results of the Horizontal Gaze Nystagmus

("HGN") test revealed Appellant's eyes tracked equally and pupils were of equal size. However, Appellant had no smooth pursuit in both eyes, distinct and sustained nystagmus was observed at maximum deviation in both eyes, and nystagmus was detected in the left eye prior to 46 degrees. During the Walk and Turn ("WAT") test, Appellant did not touch heel to toe on multiple steps, used his arms for balance, and took the incorrect number of steps. During the One Leg Stand ("OLS") test, Appellant put his foot down twice. The first attempt ended in approximately eight seconds and his second attempt ended in approximately 15 seconds.

Officer Berry advised Appellant of Missouri's Implied Consent and requested a breath sample. Appellant refused the breath test. Officer Berry read Appellant his Miranda Rights, placing him under arrest. Officer Berry asked if Appellant was operating the vehicle at the time of the crash. Appellant stated, "I guess so." Appellant also stated he had not been drinking and was not presently under the influence.

Under section 577.041, Appellant's license was revoked for one year. Per section 302.574, Appellant filed a petition for review in the St. Louis County Circuit Court. The trial court found for the Director. Appellant appeals. Appellant contends the trial court erred in affirming his license revocation because there was insufficient evidence to support a finding of probable cause to believe Appellant drove while intoxicated.

Standard of Review

A trial court's judgment upholding an administrative revocation of driving privileges is reviewed under the standard of 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). The trial court's judgment will be affirmed if there is substantial evidence to support it, it is not against the weight of the evidence, and it does not erroneously declare or misapply the law. Id. "The evidence and reasonable inferences drawn therefrom are viewed in the light most favorable to the trial court's judgment and all contrary evidence and inferences are disregarded." Boggs v. Dir. of Revenue , 564 S.W.3d 693, 697 (Mo. App. W.D. 2018).

Discussion

Appellant's sole contention is the trial court erred in its ruling because there was insufficient evidence to support finding the officer had probable cause to believe Appellant drove while intoxicated. Specifically, Appellant references a lack of evidence regarding Appellant's condition while operating a motor vehicle and a lack of evidence establishing the time of the accident.

Under Missouri's implied consent law, "any person who drives on the public highways is deemed to have consented to a chemical test to determine the alcohol or drug content of the person's blood." Hinnah v. Dir. of Revenue, 77 S.W.3d 616, 619 (Mo. banc 2002). A person has the statutory right to refuse such chemical testing. Id. However, under section 577.041.2, "his or her license shall be immediately revoked upon refusal to take the test." Such person may request a post-revocation hearing in the circuit court. Mo. Rev. Stat. § 302.574.4 (2019). When reviewing a license revocation under section 577.041, the trial court must only determine whether: (1) the person was arrested; (2) the arresting officer had reasonable grounds to believe the person was driving while intoxicated; and (3) the person refused to submit to the test. Mo. Rev. Stat. § 302.574.4 (2019) ; Fick v. Dir. of Revenue , 240 S.W.3d 688, 690–91 (Mo. banc 2007) ; Hinnah , at 621–22.³ "The Director has the burden of proving all three elements by a preponderance of the evidence." Ayler v. Dir. of Revenue , 439 S.W.3d 250, 254 (Mo. App. W.D. 2014) ; See also Jarboe v. Dir. of Revenue , 434 S.W.3d 96, 99 (Mo. App. E.D. 2014). Here, there is no dispute Appellant was arrested and refused to submit to a breath test.

The issue is whether Officer Berry's testimony and police report support the trial court's finding of reasonable grounds to believe Appellant was driving while intoxicated. " ‘Reasonable grounds’ is virtually synonymous with probable cause." Hinnah , 77 S.W.3d at 621. "Probable cause to arrest exists when the arresting officer's knowledge of the particular facts and circumstances is sufficient to warrant a prudent person's belief that a suspect has committed an offense." Id. (quoting State v. Tokar , 918 S.W.2d 753, 767 (Mo. banc 1996) ). Suspicion alone is not enough to establish reasonable grounds, or probable cause, but absolute certainty is not required. Rain v. Dir. of Revenue , 46 S.W.3d 584, 588 (Mo. App. E.D. 2001). "Whether there is probable cause to arrest depends on the information in the officers’ possession prior to the arrest." Hinnah , 77 S.W.3d at 621.

We find the Director presented sufficient evidence that Officer Berry had reasonable grounds to believe Appellant drove while intoxicated. Appellant's mother, when asked if Appellant had been drinking, nodded her head "yes." In addition, the odor of alcohol, slurred speech, lack of balance, and glassy, bloodshot eyes are indicia of intoxication. Brown v. Dir. of Revenue , 164 S.W.3d 121, 126 (Mo. App. E.D. 2005) ; Rain , 46 S.W.3d at 588. Officer Berry noted a moderate smell of alcohol emitting from Appellant at first contact, during a medical check, and at the police station. Officer Berry observed Appellant slurring his speech. While Appellant was being escorted to the ambulance, Officer Berry noticed Appellant was unsteady on his feet. Officer Berry also noted Appellant's eyes were watery, glassy and slightly bloodshot.

Appellant also scored five points on the HGN test. "The standard scoring system on the horizontal gaze nystagmus test gives one point for eye movement indicative of alcohol influence for each of the three tests for each eye." Parrish v. Dir. of Revenue , 11 S.W.3d 652, 655 (Mo. App. E.D. 1999). "The highest possible score is six points, while a score of four or more points is an indication that a suspect is intoxicated." Id. Appellant scored three points on the WAT test. A score of two or more points is an indication the suspect is intoxicated.⁴ 42 Mo. Prac., Missouri DUI Handbook § 17:15. This evidence, when viewed in the light most favorable to the trial court's judgment, supports the court's finding Officer Berry had reasonable grounds to believe Appellant was driving while intoxicated.

Appellant argues there could not have been probable cause to arrest him for driving while intoxicated because Officer Berry did not observe Appellant operating his motor vehicle or the accident. Nor did Officer Berry know of Appellant's condition at the time of operating the motor vehicle. Appellant argues there were no witnesses to the accident, nor a witness who testified to his condition immediately after the...