Goforth v. Dir. of Revenue

• Decision Date: 11 February 2020
• Docket Number: WD 82604
• Citation: 593 S.W.3d 124
• Parties: Bryan GOFORTH, Appellant, v. DIRECTOR OF REVENUE, Respondent.
• Court: Missouri Court of Appeals

593 S.W.3d 124

Bryan GOFORTH, Appellant,

v.DIRECTOR OF REVENUE, Respondent.

WD 82604

Missouri Court of Appeals, Western District.

OPINION FILED: February 11, 2020

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

Eric W. McDonnell, Columbia, MO, for respondent.

Before Special Division: Zel M. Fischer, Special Judge, Presiding, Cynthia L. Martin, Judge and Gary D. Witt, Judge

Cynthia L. Martin, Judge

Bryan Goforth ("Goforth") appeals from a judgment sustaining the Director of Revenue's revocation of Goforth's driving privileges after he refused to submit to a chemical breath test. Goforth argues that the Director of Revenue failed to adduce evidence that he operated a motor vehicle on a public highway, and thus failed to prove he impliedly consented to submit to chemical testing. Finding no error, we affirm.

Factual and Procedural Background¹

Shortly after 1:00 a.m. on February 24, 2018, the Belton Police Department received a call from a Taco Bell employee about a man in a black GMC Yukon parked in the restaurant's parking lot. The employee reported the man had previously fallen asleep in his vehicle while in the restaurant's drive-through lane. When a law enforcement officer arrived, the GMC Yukon was parked at the north end of the restaurant's parking lot, with its headlights and taillights on, and the driver's window rolled down, even though it was cold and raining. The officer observed a man, later identified as Goforth, asleep in the driver's seat. The officer smelled a strong odor of intoxicants coming from within the vehicle. Goforth was the vehicle's only occupant. The vehicle was registered to Goforth.

The officer woke Goforth, at which point Goforth explained that he was waiting for his food order from Taco Bell. Goforth denied falling asleep in the restaurant's drive-through lane. The officer asked Goforth where he was coming from three times. Goforth ultimately answered "home." The officer asked Goforth whether he had been drinking. Goforth gave a rambling answer about having a series of drinks, including two glasses of wine and 3-4 beers at Buffalo Wild Wings. The officer observed several indicators of intoxication and arrested Goforth for driving while intoxicated.

Goforth was transported to the Belton jail, where the officer read Goforth the implied consent warning required by section 577.041.2.² Goforth refused to submit to a chemical breath test. Goforth was given written notice of the revocation of his license and privilege to drive pursuant to section 302.574.1. At the time of the revocation, Goforth had a valid commercial class A license issued by the state of Missouri.

Pursuant to section 302.574.4, Goforth filed a petition to review the revocation of his license and privilege to drive. During the hearing on Goforth's petition, the Director of Revenue submitted its certified records pertaining to the case, which included the section 302.574.1 revocation notice, the alcohol influence report, a copy of Goforth's Missouri driver's license and the citation he received, the Belton Police Department's incident reports, and Goforth's Missouri driver record. Goforth argued that the trial court should set aside the Director of Revenue's revocation of his license because there was no evidence that he had ever operated a motor vehicle on a public highway. The trial court issued its findings of fact, conclusions of law, and judgment ("Judgment") on February 6, 2019, sustaining the Director of Revenue's revocation of Goforth's license and privilege to drive.

Goforth appeals.

Standard of Review

We review the trial court's judgment in a license revocation case as we do any other court-tried civil case.

Nix v. Dir. of Revenue , 573 S.W.3d 156, 159 (Mo. App. W.D. 2019). " ‘[T]he trial court's judgment will be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law.’ " Id. (quoting White v. Dir. of Revenue , 321 S.W.3d 298, 307-08 (Mo. banc 2010) ). However, " ‘[w]hen facts are not contested and the issue is one of law, our review is de novo , and no deference is given to the trial court's determination.’ " Stiers v. Dir. of Revenue , 477 S.W.3d 611, 614 (Mo. banc 2016) (quoting Johnson v. Dir. of Revenue , 411 S.W.3d 878, 881 (Mo. App. S.D. 2013) ).

Analysis

Goforth argues that the trial court erred in affirming the Director of Revenue's revocation of his license and privilege to drive because the Director of Revenue did not present evidence that he had ever operated a motor vehicle on a public highway. Goforth argues that this evidence is required before his consent to submit to chemical testing can be implied, and that in the absence of implied consent, his refusal to submit to chemical testing could not support revocation of his license.

Section 577.020 addresses when consent is implied for chemical tests to determine the alcohol or drug content of a person's blood. Relevant to this case,³ section 577.020.1(1) provides:

1. Any person who operates a vehicle upon the public highways of this state ... shall be deemed to have given consent, subject to the provisions of sections 577.019 to 577.041 , to a chemical test or tests of the person's breath, blood, saliva, or urine for the purpose of determining the alcohol or drug content of the person's blood pursuant to the following circumstances:

(1) If the person is arrested for any offense arising out of acts which the arresting officer had reasonable grounds to believe were committed while the person was operating a vehicle ... while in an intoxicated condition....

(Emphasis added.) Section 577.041.2 provides:

The request of the officer to submit to any chemical test shall include the reasons of the officer for requesting the person to submit to a test and also shall inform the person that evidence of refusal to take the test may be used against such person. If such person was operating a vehicle prior to such detention, stop, or arrest, he or she shall further be informed that his or her license shall be immediately revoked upon refusal to take the test.

If revocation of a license following the refusal to submit to chemical testing is challenged, section 302.574.4 describes what must be determined at a subsequent hearing. In a case like Goforth's, where there has been an arrest based on the circumstances described in section 577.020.1(1), section 302.574.4 provides:

At the hearing, the court shall determine only :

(1) Whether the person was arrested or stopped;

(2) Whether the officer had:

(a) Reasonable grounds to believe that the person was driving a motor vehicle while in an intoxicated or drugged condition;

...; and

(3) Whether the person refused to submit to the test.

(Emphasis added.) See Howe v. Dir. of Revenue , 575 S.W.3d 246, 250 (Mo. App. E.D. 2019) (citing section 302.574.4) ("[F]or a circuit court to uphold a driver’s license revocation for failure to submit to chemical testing, the Director must show that: (1) the driver was arrested; (2) the officer had probable cause to believe the driver was driving while intoxicated; and (3) the driver refused to submit to the test.").

Goforth admits that the Director of Revenue proved each of these essential elements by a preponderance of the evidence. [Appellant's Brief, pp. 9-10] Goforth contends, however, that the Director of Revenue failed to prove an additional essential element--that he had ever operated a vehicle on a public highway. Goforth's argument is directly contradicted, however, by the plain language of section 302.574.4 which provides that in a hearing challenging revocation of a license for refusal to submit to chemical testing, a trial court "shall determine only" the three essential elements identified in that section.

We recognize that our courts have consistently construed the third essential element described in section 302.574.4--that a driver refused to submit to chemical testing--to require proof that the refusal was valid. See, e.g. , Howe , 575 S.W.3d at 251 (holding that "an absolute prerequisite to any finding under Section 302.574.4 that [a driver] refused to submit to [chemical testing] is a corresponding finding ... that [the driver's] refusal [was] valid"). Validity of refusal requires compliance with the statutory requirements attendant to chemical testing. So, for example, our courts have held that a refusal is not valid where an officer failed to give the implied consent warning required by section 577.041.2. Id. at 251-52. And our courts have held that when "a driver conditions a refusal on consulting with an attorney, but is not given a reasonable opportunity to do so, the driver is not deemed to have refused to submit to a chemical test for purposes of license revocation." Roesing v. Dir. of Revenue , 573 S.W.3d 634, 637 (Mo. banc 2019) (emphasis omitted) (referring to section 577.041.1's right to attempt to contact an attorney).

Though not precisely articulated as such, Goforth's argument can be fairly read to contend that refusal to submit is not valid unless it is established that a driver impliedly consented to submit to chemical testing by "operat[ing] a vehicle upon the public highways of this state" as provided in section 577.020.1(1). No Missouri case has directly addressed whether a valid refusal to submit requires proof that the driver has ever operated a vehicle upon the state’s public highways. Two Missouri cases have indirectly addressed the subject, however.

In Bertram v. Director of Revenue , 930 S.W.2d 7, 8 (Mo. App. W.D. 1996), a driver was arrested after a police officer witnessed her driving her vehicle over a curb from a Wendy's restaurant, through a grass median, and into a Taco Bell lot. Because the driver was not operating her vehicle upon a public highway at the time of her arrest , she argued that her refusal to submit to chemical testing could not support suspension of her license. Id. We concluded that proof a driver was operating a vehicle on a public highway at the...