Glastetter v. Director of Revenue

• Decision Date: 06 February 2001
• Parties: (Mo.App. E.D. 2001) Lawrence J. Glastetter, Plaintiff/Respondent v. Director of Revenue, State of Missouri, Defendant/Appellant. ED77698 0
• Court: Missouri Court of Appeals

37 S.W.3d 405 (Mo.App. E.D. 2001)

Lawrence J. Glastetter, Plaintiff/Respondent v. Director of Revenue, State of Missouri, Defendant/Appellant.

ED77698

Missouri Court of Appeals Eastern District

02/06/2001

Appeal From: Circuit Court of Jefferson County, Hon. Jeff W. Schaeperkoetter

Counsel for Appellant: James A. Chenault, III

Counsel for Respondent: E.A. Stierberg and Matthew Schroeder

Opinion Summary: Director of Revenue ("Director") appeals the trial court's setting aside of Lawrence Glastetter's ("Driver") revocation of driving privileges.

Division Four holds: The trial court did not err in setting aside the revocation of Driver's driving privileges because Driver was not afforded the statutorily required twenty minutes to contact an attorney after being advised of the Implied Consent Law, as required by section 577.041(1) RSMo. Supp. (1999), and suffered actual prejudice as a result.

Lawrence E. Mooney, Presiding Judge

Opinion modified by Court's own motion on February 13, 2001. This substitution does not constitute a new opinion.

The Director of Revenue ("Director") appeals the trial court's setting aside of Lawrence Glastetter's ("Driver") revocation of driving privileges. According to Director, the trial court erred in setting aside the revocation of Driver's driving privileges because Driver's conditional consent to take a breath test only after contacting an attorney constituted a refusal to take the test. More specifically, Director argues the Driver's revocation should be sustained because Driver was given twenty minutes to contact an attorney after being given his Miranda¹ warning, which satisfies the provisions of Missouri's Implied Consent Law. We affirm.

On July 24, 1999, Driver was stopped by Officer Wissbaum ("Officer") of the Washington Police Department for not keeping his vehicle on the right half of the roadway. Officer concluded that there was sufficient probable cause to arrest Driver for driving while intoxicated. Officer read Driver his Miranda rights, and informed Driver that he could contact an attorney.

At 3:09 a.m., after arriving at the police station, Driver requested an attorney. Officer waited for Driver to contact his lawyer before administering the breath test. Driver called a friend, asking him to contact his attorney. Several minutes passed without any response from Driver's friend or his lawyer, and Driver called his friend again at 3:21 a.m. At 3:30 a.m., Officer read Missouri's Implied Consent Law to Driver. Section 577.041RSMo. Supp. (1999). Eighteen minutes later, at 3:48 a.m., Driver's friend contacted the police station and informed Driver that his lawyer instructed him to take the breath test. Driver indicated to Officer that he wanted to take the breath test pursuant to instructions from his attorney. Officer refused to allow Driver to take the breath test and, pursuant to section 577.041, Driver's driving privileges were revoked for such refusal. Driver filed a petition for review, and the trial court set aside the revocation. The Director appeals.

On review, the trial court's ruling must be upheld unless there is no substantial evidence to support it, is against the weight of the evidence, or misstates or misapplies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). To uphold the revocation of a driver's license for refusal to submit to a chemical test, the trial court shall only determine the following: (1) whether the driver was arrested; (2) whether the arresting officer had reasonable grounds to believe the driver was driving while intoxicated; and (3) whether the driver refused to submit to the test. McMaster v. Lohman, 941 S.W.2d 813, 815 (Mo. App. W.D. 1994).

In Director's sole point on appeal he argues that the trial court erred in setting aside the revocation of Driver's driving privileges pursuant to section 577.041(1) because Driver's conditional consent to take the breath test only after contacting an attorney constituted a refusal to submit to the test. We disagree.

Section 577.041(1), Missouri's Implied Consent Law, states as follows:

The request of an officer shall include the reasons of the officer requesting the person to submit to a [chemical] test and also shall inform the person that evidence of refusal to take the take the test may be used against such person and that the person's license shall be immediately revoked upon refusal to take the test. If a person when requested to submit to any test allowed pursuant to section 577.020 requests to speak to an attorney, the person shall be granted twenty minutes in which to attempt to contact an attorney. If upon completion of the twenty-minute period the person continues to refuse to submit to any test, it shall be...