Gooch v. Spradling

• Decision Date: 05 May 1975
• Docket Number: No. KCD,KCD
• Citation: 523 S.W.2d 861
• Parties: John C. GOOCH, Respondent, v. James R. SPRADLING, Director of Revenue, State of Missouri, Appellant. 27099.
• Court: Missouri Court of Appeals

Page 861

523 S.W.2d 861

John C. GOOCH, Respondent, v. James R. SPRADLING, Director of Revenue, State of Missouri, Appellant.

No. KCD 27099.

Missouri Court of Appeals, Kansas City District.

May 5, 1975.

Motion for Rehearing and/or Transfer Denied June 2, 1975.

Application to Transfer Denied July 14, 1975.

John C. Danforth, Atty. Gen., Richard L. Wieler, Asst. Atty. Gen., Jefferson City, for appellant.

G. Michael Fatall, W. James Foland, Kansas City, for respondent.

Before SWOFFORD, P.J., and ROBERT R. WELBORN and ANDREW J. HIGGINS, Special Judges.

SWOFFORD, Presiding Judge.

Respondent (hereinafter called 'licensee') was arrested for driving a motor vehicle while intoxicated and his operator's license was revoked for a period of one year by the appellant for alleged refusal to submit to a breathalyzer test under the provisions of Section 564.444(1) RSMo 1969, V.A.M.S. He filed his petition for review of this administrative ruling as authorized by section 564.444(2) and upon hearing in the court below, the order of revocation was set aside and rescinded. This appeal followed.

The licensee has filed his motion to dismiss the appeal (incorporated in his brief), based upon the assertion that the appellant's brief does not comply with Rule 84.04(b), V.A.M.R., as to Jurisdictional Statement, nor with Rule 84.04(d) as to Points Relied On. Appellant filed his suggestions in opposition to this motion which, at least tacitly, admit these deficiencies. This motion to dismiss was taken with the case and it is now denied. This ruling is made (in face of the fact that the appellant's brief is obviously subject to the failures charged to it) because the jurisdiction of this court is apparent from the transcript and the briefs, the basic facts are clear, the issue of law is sharply posed, and a final determination of this matter will result in no hardship to the licensee since the enforcement of the revocation order has been stayed by appropriate orders in the court below. Parker v. Wallace, 473 S.W.2d 767, 772(10) (Mo.App.1971). It should be here noted, however, that it continues to be the sincere hope of this and all the appellate courts of this state that counsel on appeal scrupulously comply with the rules and thus avoid the possibility of punitive orders of dismissal.

The single decisive point on this appeal is whether the licensee's refusal to take a breathalyzer test was such a refusal as to invoke the sanction of revocation as provided by Section 564.444 RSMo 1969, V.A.M.R. At the review hearing in the court below, the appellant assumed the burden of proof that the revocation was warranted under the facts by offering the testimony of the arresting officer, which may be summarized as follows:

Garland Howard Rimmer, a member of the police department of Independence, Missouri for one year and nine months, stopped the licensee on September 3, 1973 at or near 38th Street and Queen Ridge Drive within the municipal limits of Independence after following the car driven by licensee for five blocks and observing that the car was being operated in an erratic manner. At this location, the officer observed that the licensee had a strong odor of alcohol about his person, staggered and almost lost his balance, his eyes were glassy and he was swaying. The officer thereupon placed the licensee under arrest for driving while intoxicated. The arrest occurred at approximately 6:36 o'clock p.m. and the licensee was forthwith taken to the Independence police station and the officer prepared the breathalyzer machine for operation. About 15--20 minutes after arrival at the station, the officer then told licensee that he wanted him to submit to the test, and the possible consequences of his refusal to do so. The officer testified that at this time, the licensee twice refused the test and stated 'Somebody tell me my rights, somebody tell me what to do.', and the officer then disconnected the machine. The licensee then talked to Corporal Willoughby, the booking officer, and again twice refused the test. Rimmer testified that the licensee then agreed to the test and he, Rimmer, again set up the breathalyzer machine. Thereupon, the officer stated, the licensee again refused the test, at which time the officer filled out the refusal form as provided by Section 564.444 RSMo 1969, V.A.M.R.

Officer Rimmer testified that after he stopped the licensee's car, he had him under observation for 'right at an hour' and that in his opinion, the licensee was 'highly intoxicated'.

On cross-examination, the officer stated that the licensee asked to see his lawyer, but could not recall when this was relative to their arrival at the police station, except that it was as he started to read the Miranda warning to licensee. He never did actually read the warning. The officer explained 'to him that as soon as he was booked in, he would have the right and could call anyone he wished.' He did not intend to book the licensee until after he was given 'all these tests'. There was no question in the officer's mind that the licensee wanted to talk to his lawyer at the time he was being questioned and Rimmer was filling out the alcohol influence report.

The licensee testified at the review hearing in the court below that from the scene of his arrest, he was taken to the police station, and when he first arrived there he requested that he be permitted to contact his lawyer and received no response to this request. When the breathalyzer machine was set up, he refused to take test and stated, 'I'm not going to take any test until I talk to my lawyer.' During the next hour, he was continually questioned by Officer Rimmer and was asked to perform certain tests, such as the 'coin drop' test. He was asked repeatedly 'Are you going to take the test?' and he repeatedly refused 'until I talk to my lawyer', except on one occasion, because of the 'badgering', he agreed to the test but changed his mind because he wanted to talk to his lawyer. He stated that the officer never explained what the breathalyzer test was or what the consequences of his refusal to take it would be. He testified that had he been permitted to talk to his lawyer and had been advised to take the test, he would have done so. He had never before been convicted of 'drunken driving'; had never taken a breathalyzer test; and had never been taken to a police station and quizzed for an hour. On cross-examination, he denied that he was intoxicated and admitted that he became some what irritated and argumentative with the officers when he was not permitted to contact his lawyer. He had no previous experience with or knowledge of the breathalyzer test, and the officers said nothing to him about it, except to repeatedly ask him, 'Are you going to take the breath test?'

Officer Rimmer and the licensee were the only witnesses at the hearing below.

The court below made Findings of Fact which may be summarized as: (1) Licensee displayed signs of intoxication; (2) he was arrested; (3) at the police station, he was requested to take the breathalyzer test and was advised of the consequences of a refusal; (4) he made repeated demands and requests to consult his attorney, which were refused, and he was not allowed to and did not talk to counsel at any time while under arrest; (5) he refused to take the breathalyzer test; and (6) the policy of the Independence police department, which was accomplished in this case, is that no phone calls may be made until a party is booked, and they do not 'book' until after the breathalyzer or other tests are made.

The trial court's Conclusions of Law were as follows:

'1. The plaintiff was arrested.

2. The arresting officer had reasonable grounds to believe that the plaintiff was driving a motor vehicle while in an intoxicated condition.

3. The plaintiff did not refuse to take the breathalyzer test.

4. V.A.M.R. 37.89 guarantees to each individual that is arrested or held in custody by a police officer in any jail, police station or other place, for the alleged commission of an offense or suspicion thereof, the right to consult with an attorney and to use a telephone to do so, if one is available.

5. The plaintiff, although having made the request, was not allowed to consult with his attorney and therefore there was no effective refusal to take the breathalyzer test.'

A careful review of the transcript discloses that there was ample competent evidence to support the findings of fact summarized above, and the same are approved under Rule 73.01(3)(a), (b), applicable to appellate review in this type of case. Likewise, the trial court's conclusions of law 1 and 2 are proper and comply with the requirements of Section 564.444, subd. 2(1), (2), RSMo 1969, V.A.M.S.

The only remaining matter for decision here is whether the trial court's conclusions of law 3, 4 and 5 comport with legal principles and were proper under the facts of this case. In combination, these conclusions result in a finding as a matter of law that the licensee did not refuse to submit to the breathalyzer test. Section 564.444, subd. 2(3) and Section 564.444, subd. 3, RSMo 1969, V.A.M.S., require that the court make an affirmative finding that the licensee did refuse to submit to the test before an order of revocation may be affirmed.

The conclusions of law of the court below reaching the negative of this proposition stem from an application of Rule 37.89, and so far as the briefs herein and independent research disclose, presents a legal problem never before directly decided by an appellate court in Missouri.

Under the mandate of Article V, Section 5, of the Constitution of the State of Missouri, V.A.M.S., the Supreme Court adopted Rule 37, governing practice and procedure with reference to traffic c...