Green v. Director of Revenue

• Decision Date: 09 November 2004
• Docket Number: No. 25998.,25998.
• Citation: 148 S.W.3d 892
• Parties: Jennifer GREEN, Petitioner-Respondent, v. DIRECTOR OF REVENUE, Respondent-Appellant.
• Court: Missouri Court of Appeals

148 S.W.3d 892

Jennifer GREEN, Petitioner-Respondent, v. DIRECTOR OF REVENUE, Respondent-Appellant.

No. 25998.

Missouri Court of Appeals, Southern District, Division One.

November 9, 2004.

Jeremiah W. (Jay) Nixon, Atty. Gen., Ryan Bertels, Assistant Attorney General, Jefferson City, for appellant.

No brief filed by Respondent.

JAMES K. PREWITT, Judge.

Director of Revenue ("Director") appeals the Stoddard County Circuit Court's reinstatement of Respondent Jennifer Green's ("Respondent") driving privileges following the Director's suspension of the same pursuant to Section 302.505, RSMo Supp.2002, for driving while intoxicated. In its judgment and order setting aside the suspension, following a trial de novo held on November 7, 2003, the trial court found that Director "failed to meet the required burden of proof and [did not] adduce sufficient evidence to support the suspension of [Respondent's] driving privileges[.]" No further findings or conclusions were included in the trial court's judgment and order.

Respondent did not file a brief responding to the Director's appeal. Although there is no requirement that Respondent file a brief, her failure to do so leaves us without the benefit of her argument, if any, to support the trial court's decision.

Director presents one point relied on, contending that reinstatement of Respondent's driving privileges was in error "because this decision was not supported by substantial evidence and was against the weight of the evidence, in that the uncontroverted evidence showed that (1) the police had probable cause to arrest [Respondent] for driving while intoxicated; and (2) [Respondent] was driving with a blood alcohol content that exceeded the legal limit." We set forth the evidence presented at trial below.

At approximately 1:36 a.m. on the morning of November 22, 2002, Officer Cory Mills, with the Dexter Police Department, received information from the police dispatcher indicating that an employee at Huck's gas station reported that two intoxicated females had left the station after being refused the sale of alcohol and were driving westbound in a silver Honda. Dispatch provided a Missouri license plate number which the gas station's employee had reported. At the time Officer Mills received the dispatch, he was two blocks away from Huck's gas station.

Shortly thereafter, Officer Mills sighted a silver Honda bearing a license plate number matching that reported by Huck's employee and parked at a closed gas station approximately one block away from Huck's, with its engine running and headlights on. Officer Mills pulled into the station behind the silver Honda to investigate and found Respondent sitting behind the wheel along with a female passenger. When Officer Mills inquired why they were parked at a closed station, Respondent told him she was waiting for her boyfriend to pick her up. Mills reported that he detected a "strong odor" of alcohol when Respondent answered.

Officer Mills testified that he also observed Respondent's bloodshot eyes, and he asked her to step out of her vehicle and sit in his patrol car so that he could question her further. Respondent complied with the officer's request, and when asked if she had been drinking, she stated she had. The "Offense/Incident Report" filed by Officer Mills noted that Respondent's "speech was slurred and her eyes were watery and bloodshot." Officer Mills then requested Respondent submit to a portable breathalyzer test, to which she agreed. Mills reported that upon a positive result from the portable breathalyzer test, he asked Respondent to perform field sobriety tests, and she complied.

Officer Mills instructed Respondent on and demonstrated for her the performance of three field sobriety tests: the gaze nystagmus test; the walk-and-turn test; and the one-leg stand test. Mills testified and indicated on his report that Respondent performed poorly on all three. Respondent was placed under arrest for driving while intoxicated and transported to the Dexter police station. She was subsequently taken to the Bernie police station because the breathalyzer at Dexter was not functioning properly. Another breathalyzer test was administered at the Bernie police station. The results indicated a blood alcohol content of .207%.

Officer Mills was the only witness called at trial. The trial court admitted into evidence Respondent's driving record, the offense citation, the alcohol influence report, the BAC DataMaster Evidence Ticket and certificate of analysis, and the offense/incident and arrest reports. Counsel for Respondent stipulated to the proper administration of the breathalyzer test and stated he had no objection to the admission of Respondent's driving records and relevant business records provided by Director.

Upon review of a trial court's reinstatement of driving privileges following suspension of the same pursuant to § 302.505, RSMo Supp.2002, this court will affirm the judgment of the trial court unless there is no substantial evidence to support it, the judgment is against the weight of the evidence, or it erroneously declares or applies the law. Reckner v. Fischer, 121 S.W.3d 296, 300 (Mo.App.2003). Under this standard, however, we cannot affirm a judgment of the trial court by merely disregarding all uncontradicted evidence supporting Director's contention that Director established a prima facie case by a preponderance of the evidence. Matthews v. Dir. of Revenue, State, 938 S.W.2d 279, 282 (Mo.App.1997).

Section 302.535.1 provides that a suspended driver may seek a trial de novo wherein "the burden of proof shall be on the state to adduce the evidence." Under this burden, the Director must establish a prima facie case by a preponderance of the evidence, showing that there was probable cause to arrest the driver for driving while intoxicated and that the driver's blood alcohol content exceeded the legal limit. Reckner, 121 S.W.3d at 300. Although the burden of production shifts to the driver to rebut the Director's case once Director...