Gonzalez v. Director of Revenue

• Decision Date: 18 June 2003
• Docket Number: No. 25203.,25203.
• Parties: Antonio Javier GONZALEZ, Plaintiff-Respondent, v. DIRECTOR OF REVENUE, STATE OF MISSOURI, Defendant-Appellant.
• Court: Missouri Court of Appeals

107 S.W.3d 491

Antonio Javier GONZALEZ, Plaintiff-Respondent, v. DIRECTOR OF REVENUE, STATE OF MISSOURI, Defendant-Appellant.

No. 25203.

Missouri Court of Appeals, Southern District, Division Two.

June 18, 2003.

Jeremiah W. (Jay) Nixon, Atty. Gen., Patrick T. Morgan, Asst. Atty. Gen., Jefferson City, for appellant.

Robert E. Childress, Springfield, for respondent.

NANCY STEFFEN RAHMEYER, Chief Judge.

Missouri's Director of Revenue ("Director") appeals the judgment of the trial court reinstating the driving privileges of Antonio Javier Gonzalez ("Respondent"). Respondent's license had been revoked pursuant to § 577.041¹ for his alleged refusal to submit to a chemical test to determine his blood alcohol concentration.² Director claims the judgment is against the weight of the evidence, unsupported by substantial evidence, and an erroneous application of the law. See Rule 84.13(d).³ We reverse the trial court's judgment of reinstatement.

On the evening of December 8, 2001, Missouri State Highway Patrol Trooper Jason Pace ("Pace") stopped Respondent after Respondent failed to use his signal when turning and crossed the centerline twice. When Pace spoke with Respondent, he noted "a moderate odor of intoxicants coming from and about his person." Pace and Respondent "carried on [a] normal conversation" in which Respondent did not ask Pace to repeat himself or otherwise indicate he did not understand Pace. Pace arrested Respondent for driving while intoxicated and took Respondent to the Greene County Jail.

While at the jail, Pace read the Implied Consent Warning to Respondent. As Respondent "was beginning to take the [breathalyzer] test he began to state he did not understand." Pace called Missouri State Highway Patrol Trooper Joe Boix ("Boix") and requested that Boix give the Implied Consent Warning to Respondent in Spanish.⁴ After Respondent spoke to Boix, Respondent told Pace that he would take the breath test and "began to blow," but he stopped and asked to speak with an attorney. Pace gave Respondent twenty minutes and access to a telephone to contact an attorney, but Respondent made no phone calls during the twenty-minute period. At the end of the time, Pace reread the Implied Consent Warning and asked Respondent if he understood the warning and would take a test; Respondent replied that he would not.

Respondent's driver's license was revoked pursuant to § 577.041, and Respondent filed a petition for review in the trial court. The trial court set aside the revocation and reinstated Respondent's driver's license. This appeal follows.⁵

This court will affirm a trial court's reinstatement of driving privileges that have been revoked for refusing to consent to a chemical test unless it is unsupported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Sutton v. Director of Revenue, 20 S.W.3d 918, 920-21 (Mo.App. S.D.2000). The issues in a post-revocation hearing are limited to (1) whether the person was arrested or stopped; (2) whether the officer had reasonable grounds to believe the person was operating a motor vehicle while in an intoxicated or drugged condition; and (3) whether the person refused to submit to the test. Hinnah v. Director of Revenue, 77 S.W.3d 616, 620 (Mo. banc 2002). Once these three questions have been answered, the inquiry ends. Id. The director has the burden of proof at the hearing. Id. If the trial court finds any issue not to be in the affirmative, it shall order the director to reinstate the license. Id. See also 577.041.5.

The trial court concluded that "without the testimony of Trooper Boix, the court cannot find that [Respondent] understood Missouri's Implied Consent Warning." To establish a prima facia case, Director must show only that the person was arrested or stopped, the officer had reasonable grounds to believe the person was operating a motor vehicle while in an intoxicated or drugged condition, and the person refused to submit to the test. Hinnah, 77 S.W.3d at 620. At trial, Respondent stipulated that Respondent was arrested and that Pace had reasonable grounds to arrest Respondent for driving while intoxicated. Thus, the only issue left for us to determine is whether the Director established a prima facie case that Respondent refused to submit to a chemical test of his blood alcohol concentration.⁶

A refusal has been defined as follows:

There is no mysterious meaning to the word "refusal." In the context of the implied consent law, it simply means that an arrestee, after having been requested to take the breathalyzer test, declines to do so of his own volition. Whether the declination is accomplished by verbally saying, "I refuse," or by remaining silent and just not breathing or blowing into the machine, or by vocalizing some sort of qualified or conditional consent or refusal, does not make any difference. The volitional failure to do what is necessary in order that the test can be performed is a refusal.

Spradling v. Deimeke, 528 S.W.2d 759, 766 (Mo.1975).

A driver who has been advised of his rights under the Implied Consent Law, but declines to take the test, is deemed to have refused the test unless he objectively and unequivocally shows he does not understand his rights and the warning concerning the consequences of refusal and, thereafter, he was denied clarification. Id. "A lack of understanding not made apparent to the officer is of no consequence." Id. (quoting State of Washington, Department of Motor Vehicles v. Riba, 10 Wash. App. 857, 520 P.2d 942, 945 (1974)).

While both parties focus on whether Respondent understood the warnings given in English by Pace and allegedly given in Spanish by Boix, such a question is beyond the scope of our inquiry. Rather, we are concerned only with whether Respondent refused to take the test and, in the event he did not understand his rights and the warning concerning the consequences of refusal, whether Respondent clearly and unequivocally communicated his lack of understanding to Pace.

After being read the warning in English by Pace, Respondent agreed to take the test. As Respondent started to take the test, he said, without specification, only that he did not understand. To ensure Respondent understood the warning, Pace requested that Boix give the warning to Respondent in Spanish. After Respondent spoke to Boix, he again agreed to take the test. The second time he began to take the test, he stopped and requested to contact an attorney. At the end of the twenty-minute period wherein he was allowed to contact an attorney as he had requested, Pace reread the warning to Respondent and asked if he would take the test. Without further explanation, Respondent said he would not.

If Respondent did not understand the warning or the consequences of refusing the test, he had an affirmative duty to inform Pace of his lack of understanding. See Baldridge v. Director of Revenue, 82 S.W.3d 212 (Mo.App. W.D.2002). Nothing in the record suggests that, after the final reading of the warning, Respondent said any more to Pace than that he would not take the test.

Respondent argues this case is similar to Kisselev v. Director of Revenue, 97 S.W.3d 538 (Mo.App. S.D.2003). That case, however, is not applicable to this situation. While Kisselev did involve a language barrier, the trial court concluded that the driver "did...