Green, In re, 9455

• Decision Date: 14 June 1974
• Docket Number: No. 9455,9455
• Parties: In the Matter of the Driver's License of Elbert H. GREEN, Petitioner-Appellant.
• Court: Missouri Court of Appeals

Page 129

511 S.W.2d 129

In the Matter of the Driver's License of Elbert H. GREEN,

Petitioner-Appellant.

No. 9455.

Missouri Court of Appeals, Springfield District.

June 14, 1974.

Neale, Newman, Bradshaw & Freeman, O. J. Taylor, Bradford A. Brett, Springfield, for petitioner-appellant.

John C. Danforth, Atty. Gen., Richard L. Wieler, Asst. Atty. Gen., Jefferson City, for Director of Revenue.

PER CURIAM.

On September 21, 1972, the then Director of Revenue issued an order revoking the operator's license of Elbert H. Green (hereinafter appellant) for a period of one year from and after October 6, 1972, because of appellant's refusal to submit to a chemical (breathalyzer) test following his arrest on March 18, 1972, for driving an automobile upon a public highway in Springfield, Missouri, while intoxicated. § 564.444, par. 1. ¹ On October 3, 1972, appellant instituted this proceeding for a hearing in the Circuit Court of Greene County (§ 564.444, par. 2) and on the same date sought and obtained an order staying revocation of his license pending final determination of that judicial proceeding. At the close of a full hearing thereafter accorded to appellant, the court took the cause under advisement and in due time filed a scholarly opinion and entered a judgment finding that revocation of appellant's license was proper but continuing the stay of such revocation until determination of the cause on this appeal.

This matter is civil in nature (Blydenburg v. David, 413 S.W.2d 284, 290 (Mo. banc 1967)) and is governed by § 564.444. Paragraph 1 of that statute provides in pertinent part that: 'If a person under arrest refuses upon the request of the arresting officer to submit to a chemical test, which request shall include the reasons of the officer for requesting the person to submit to a test and which also shall inform the person that his license may be revoked upon his refusal to take the test, then none shall be given. In this event, the arresting officer, if he so believes, shall make a sworn report to the director of revenue that he has reasonable grounds to believe that the arrested person was driving a motor vehicle upon the public highways of this state while in an intoxicated condition and that, on his request, (such person) refused to submit to the test. Upon receipt of the officer's report the director shall revoke the license of the person refusing to take the test for a period of not more than one year . . ..' Paragraph 2 permits a judicial hearing on the revocation, prescribes that the prosecuting attorney 'shall appear at the hearing on behalf of the arresting officer,' and that at such hearing 'the judge shall determine only: (1) Whether or not the person was arrested; (2) Whether or not the arresting officer had reasonable grounds to believe that the person was driving a motor vehicle while in an intoxicated condition; and, (3) Whether or not the person refused to submit to the test.' If any one of those three issues is determined in the negative, the court 'shall order the director to reinstate the license or permit to drive.'

Before proceeding to the facts, we observe preliminarily that the scope of our appellate review in this proceeding is the same as in other court-tried civil cases (Bolling v. Schaffner, 488 S.W.2d 212, 213(1) (Mo.App.1972)) and thus is delineated in and governed by Rule 73.01(d), which provides, inter alia, that '(t)he appellate court shall review the case upon both the law and the evidence as in suits of an equitable nature' and that '(t)he judgment shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.'

About 4:40 P.M. on Saturday, March 18, 1972, Sergeant Ralph Jackson, a 19-year veteran of the Springfield Police Department then on duty in a marked patrol car, was waiting on East Division Street for the traffic light at the intersection of that street and North Glenstone Avenue to change, when the driver of an automobile on Glenstone turned onto Division, stopped by the side of the patrol car, and spoke briefly with Jackson. As a result of that driver's comments, Jackson proceeded south on Glenstone, which has a four-lane roadway with two marked lanes for traffic moving in each direction, and observed appellant's southbound Cadillac and behind it 'a string' of four automobiles, whose drivers 'were hesitant about passing, as the driver of the Cadillac was driving erratical (sic)'--'I mean he was going over in the other southbound lane of traffic . . . and back, just kind of weaving.' After the four automobiles had an opportunity to pass around the Cadillac when there was 'a break' in northbound traffic, Jackson turned 'the red light on, I thought maybe he would pull over (but) he didn't.' Jackson then 'pulled up alongside of the car and motioned for him to pull over, and at that time he did so, partially blocking the inside lane' for southbound traffic, until pursuant to Jackson's request appellant turned the Cadillac onto an adjacent parking lot on the west side of Glenstone.

Before Jackson interrogated appellant, the driver of another southbound automobile that had just pulled into the same parking lot also complained about the driver of the Cadillac, identified him by name, and expressed the 'opinion he was drunk.' Proceeding to interrogation of appellant, Jackson told him of 'the two complaints' by other motorists. As Jackson described it, appellant was 'real slow about answering' questions and likewise 'real slow about looking through his billfold' for his operator's license before opining that he 'must have left' it at home where, in fact, it subsequently was found. There was an odor of alcohol about appellant's person and, when he got out of his automobile, he was unsteady on his feet. Being of the opinion that appellant was intoxicated, Jackson placed him under arrest for intoxicated driving, informed him that he would have to go to the police station, called another patrol car in which appellant was taken to the station, and arranged for the Cadillac to be towed in. From the foregoing, we think it clear that the trial court properly found, in ruling the first and second issues determinable on judicial review of revocation of an operator's license, (1) that appellant was arrested and (2) that Jackson, the arresting officer, had reasonable grounds to believe that appellant was driving a motor vehicle while in an intoxicated condition. § 564.444, par. 2.

The third statutory issue determinable by the trial court was whether or not appellant refused to submit to the test. At the hearing, appellant admitted that he definitely refused to take the test. However, his capable and resourceful counsel vigorously assert that the request of the arresting officer that appellant submit to the test was inadequate because appellant was not advised (a) 'that revocation of his operator's license was mandatory if he refused the chemical test' and (b) 'of the reasons for the request that he submit to a chemical analysis.'

Of (a). The undisputed testimony of Sergeant Jackson, the arresting officer, was that at the police station he explained to appellant 'the operation procedures . . . how the breathalyzer operates' and then 'the consequences, what would happen to him if he refused to take the breathalyzer' test, in this connection reading to appellant a prepared statement kept at police headquarters for such use which stated and set forth such consequences in substantially the language of the statute, i.e., 'that his license may be revoked upon his refusal to take the test.' § 564.444, par. 1. Additionally Officer King, a qualified and licensed breathalyzer operator, testified that he also informed appellant 'that the law required him to take the test when he was suspected of being intoxicated while he was driving, and the consequences if he refuses.'

Although the arresting officer's statement was in the language of the statute, appellant's counsel boldly assert that such warning 'that his license may be revoked upon his refusal to take the test' actually was 'erroneous' and 'misleading' because this 'carried with it the connotation' that revocation might or might not result, whereas (so they say) the remainder of the same statutory paragraph (§ 564.444, par. 1) makes revocation absolutely mandatory. (All emphasis herein is ours.) However, upon careful examination of the remainder of that paragraph, we find in the third sentence thereof (as hereinbefore quoted) that 'the director (of revenue) shall revoke the license of the person refusing to take the test' only '(u)pon receipt of the (arresting) officer's report.' And, returning to the second sentence of the same paragraph, we find that such officer 'shall make a sworn report to the director of revenue' only 'if he so believes . . . (1) that he has reasonable grounds to believe that the arrested person was driving a motor vehicle upon the public highways of this state while in an intoxicated condition and (2) that, on his (the officer's) request, (such person) refused to submit to the test.' By disposing of requirement (1) in the 'sworn report' with the cavalier parenthetical comment that 'an arresting officer could hardly contend otherwise in a case in which the arrest has already been made,' appellant's counsel thereby treat of the second sentence as imposing upon the arresting officer an obligation, 'mandatory beyond question,' to make 'a sworn report' if the arrested person refused to submit to the test.

We are unable to concur in counsel's casual and confident disposition of requirement (1) on the assumption that 'an arresting officer could hardly contend otherwise . . ..' On the contrary, we can envision a state of facts (a) in which an officer might, at the time of arrest, have reasonable grounds to believe that the arrested person was driving a motor vehicle on the highway while in an intoxicated...