Gannon v. Dir. Revenue

• Decision Date: 22 October 2013
• Docket Number: No. ED 99326.,ED 99326.
• Citation: 411 S.W.3d 394
• Parties: Torry C. GANNON, Respondent, v. DIRECTOR OF REVENUE, Appellant.
• Court: Missouri Court of Appeals

411 S.W.3d 394

Torry C. GANNON, Respondent,

v.DIRECTOR OF REVENUE, Appellant.

No. ED 99326.

Missouri Court of Appeals,

Eastern District,

Division Five.

Oct. 22, 2013.

Chris Koster, Attorney General, Rachel M. Jones, Special Asst. Atty. Gen., Missouri Department of Revenue, Jefferson City, MO, for appellant.

Michael E. Reid, Edwardsville, IL, for respondent.

ROBERT M. CLAYTON III, Chief Judge.

The Director of Revenue, State of Missouri(“the DOR”), appeals the judgment of the trial court in favor of Torry Gannon on Gannon's petition for review of the revocation of his driver's license pursuant to Section 302.535 RSMo (Cum.Supp.2002).¹We reverse and remand.

I.DISCUSSION

Gannon was arrested for driving while intoxicated after being stopped for speeding and failing to drive within a single lane.Gannon's driver's license was revoked pursuant to Section 302.505.Gannon filed a petition for trial de novo to review the revocation.The trial court granted his petition and reinstated Gannon's driving privileges.The DOR now appeals.²

A.Standard of Review

In his sole point on appeal, the DOR claims the trial court erred in reinstating Gannon's driving privilege because there was sufficient evidence of probable cause to arrest Gannon for driving while intoxicated.The trial court entered judgment finding that the officer did not have probable cause based upon insufficient evidence and testimony concerning the field sobriety tests.

As an initial matter, we note that at the beginning of trial, the DOR specifically requested findings from the trial court regarding “any indicia of intoxication [alleged] that the Court did not believe....”The trial court's judgment did not contain any such specific findings.Instead, the court entered a form judgment with boxes checked and one sentence reflecting a finding that “officer did not have probable cause based upon insufficient evidence and testimony re: field sobriety tests re: impairment.”Additionally, we note the transcript appears to reflect the trial court's entry of judgment in favor of Gannon after his counsel moved for a “directed verdict” at the close of the DOR's case.At the close of the DOR's case, counsel for Gannon asked for a directed verdict, claiming the DOR failed to meet its prima facie burden.The parties presented arguments on counsel for Gannon's request, and thereafter the following discussion occurred:

THE COURT: All right.She'll give you a copy of that judgment, and we're off the record.

COUNSEL FOR GANNON: I would like to put on our expert as far as to further refute.Thus far I've asked for a directed verdict.

THE COURT: And I'm going to give you a copy of the judgment, so you won't have to worry about it.

(Proceedings were concluded.)

A motion for directed verdict is inappropriate in a court-tried case.Spry v. Director of Revenue,144 S.W.3d 362, 367(Mo.App. S.D.2004).In a jury-tried case, a motion for directed verdict challenges the sufficiency of the plaintiff's evidence to make a submissible case.Id. at 366.However, in a court-tried case, such as this one, we treat a motion for directed verdict as a motion for judgment pursuant to Rule 73.01(b).³Rule 73.01(b) provides, in relevant part that in cases tried without a jury, “[a]fter the plaintiff has completed presentation of plaintiff's evidence, the defendant may move by motion for a judgment on the grounds that upon the facts and the law the plaintiff is not entitled to relief.”Unlike a motion for directed verdict, a motion under Rule 73.01(b) submits the case for judgment on the merits.Id. at 367.Thus, rather than review the present case for submissibility, we review the trial court's judgment reinstating Gannon's driving privileges under Murphy v. Carron,536 S.W.2d 30(Mo. banc 1976).Coyle v. Director of Revenue,88 S.W.3d 887, 892(Mo.App. W.D.2002).We will affirm the judgment unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law.Id.

B.Probable Cause

Pursuant to Section 302.505, the DOR may administratively suspend or revoke a driver's license upon a determination the driver was arrested upon probable cause for driving while intoxicated.The aggrieved driver may then seek review of the suspension or revocation through a trial de novo.Section 302.535.1;Orton v. Director of Revenue,170 S.W.3d 516, 520(Mo.App. W.D.2005).The DOR has the burden of proof to establish the prima facie case for revocation by a preponderance of the evidence.Orton,170 S.W.3d at 520.The DOR must show there was probable cause to arrest the driver for driving while intoxicated, and the driver's blood alcohol concentration was .08 percent or more.Id.The phrase “reasonable grounds” is synonymous with probable cause.Findley v. Director of Revenue,204 S.W.3d 722, 726(Mo.App. S.D.2006)(internal citations omitted).Probable cause to arrest exists if the circumstances and facts would lead a person of reasonable caution to believe an offense has been committed.Coyle,88 S.W.3d at 893.Whether probable cause existed to arrest Gannon for driving while intoxicated is determined by examining the circumstances surrounding the arrest as they appeared to a prudent, cautious, and trained police officer.Id.

Here, Trooper Evan Van Winkle testified at trial.⁴In addition, the alcohol influence report (“AIR”), narrative report, and other supporting documents were admitted at trial, over Gannon's objection.Trooper Van Winkle testified he observed Gannon driving over the speed limit and he observed Gannon's vehicle fail to drive within a single lane.Prior to performing any field sobriety tests, Trooper Van Winkle observed the strong odor of intoxicating beverage about Gannon's person, and he asked Gannon if he had consumed any alcoholic beverages.Gannon stated he“had five or six beers at the O'Aces.”Trooper Van Winkle also observed Gannon's eyes, which were bloodshot, glassy, and watery, and he noted Gannon's speech was slurred.Trooper Van Winkle also noted an observation of “swaying” balance or walking on the AIR.

Following these initial observations, Trooper Van Winkle administered two field sobriety tests, as well as the horizontal gaze nystagmus test.⁵Trooper Van Winkle testified, and his report reflects, that Gannon exhibited two clues on the walk-and-turn field sobriety test.According to Trooper Van Winkle, two or more clues exhibited on the walk-and-turn test serves as an indicator of intoxication.The AIR reflects that Gannon also exhibited several clues on the one-leg stand field sobriety test, as well as a score of six points on the HGN test.

During the trial, counsel for Gannon questioned Trooper Van Winkle concerning his observations of Gannon, his administration of the field sobriety tests, and his training to administer the HGN test.Trooper Van Winkle testified he received training from the academy to administer the HGN test, which equated to four and a half hours of training.⁶In addition, counsel for Gannon questioned Trooper Van Winkle regarding the administration of two field sobriety tests, the walk-and-turn test and the one-leg stand test.With respect to the results of the walk-and-turn test, counsel questioned Trooper Van Winkle about his inconsistent statements concerning whether Gannon used his hands or fully used his arms for balance while performing the test.Trooper Van Winkle admitted that if Gannon used only his hands for balance that would not be a clue to indicate impairment for the test.Counsel similarly questioned Trooper Van Winkle about whether Gannon used only his hands or used his arms for balance during the one-leg stand test, and Trooper Van Winkle stated he could not recall whether Gannon used his hands or his arms.

Although Gannon challenged Trooper Van Winkle with respect to his method of administering the field sobriety tests and his training to administer the HGN, these tests are not mandatory to a determination of probable cause.SeeCoyle,88 S.W.3d at 894;andArch,186 S.W.3d at 480.An officer may develop probable cause to arrest an individual for driving while intoxicated absent any field sobriety tests at all.Findley v. Dir. of Revenue,204 S.W.3d 722, 727(Mo.App. S.D.2006)(internal citations omitted).The tests merely supplement the officer's other observations in determining whether probable cause exists.Id.

Absent field sobriety tests or HGN testing, similar observations as those made by Trooper Van Winkle in the present case, such as traffic violations; the strong odor of intoxicating beverage; bloodshot, glassy, watery eyes; slurred speech; swaying balance or gait, and an admission to drinking by the driver have been considered sufficient evidence of probable cause to arrest for driving while intoxicated.Brown v. Director of Revenue,85...