Guhr v. Director of Revenue

• Court: Missouri Supreme Court
• Writing for the Court: William Ray Price, Jr.
• Citation: Guhr v. Director of Revenue, 228 S.W.3d 581 (Mo. 2007)
• Decision Date: 26 June 2007
• Docket Number: No. SC 88159.,SC 88159.
• Parties: Marcel Dean GUHR, Respondent, v. DIRECTOR OF REVENUE, State of Missouri, Appellant.

228 S.W.3d 581

Marcel Dean GUHR, Respondent, v. DIRECTOR OF REVENUE, State of Missouri, Appellant.

No. SC 88159.

Supreme Court of Missouri, En Banc.

June 26, 2007.

Motion to Modify Opinion Denied August 7, 2007.

Jeremiah W. (Jay) Nixon, Atty. Gen., Brad R. Jones, Asst. Atty. Gen., Jefferson City, for Appellant.

Jeffrey S. Eastman, Gladstone, Carl M. Ward, Washington, Timothy R. Cisar, Lake Ozark, for Respondent.

WILLIAM RAY PRICE, JR., Judge.

A Versailles police officer arrested Marcel Dean Guhr for driving while intoxicated. Guhr refused to submit to a chemical test of his breath. Consequently, the director of revenue revoked Guhr's driver's license pursuant to section 577.041, RSMo Supp.2006.¹ Guhr petitioned the circuit court for a hearing. The court determined that there was no probable cause to arrest Guhr for driving while intoxicated and ordered the director to reinstate his driving privilege. Because the judgment was against the weight of the evidence, it is reversed, and the case is remanded.

I. Factual and Procedural Background

Marcel Dean Guhr was arrested. The police officer's narrative of the incident that was admitted into evidence is the basis for the following account.

At around 10:00 p.m., the officer saw a blue Chevrolet pickup truck leaving the Tiger Lanes bowling alley. He observed the driver of the truck twice accelerate so that the rear tires lost traction and spun on the pavement.

The officer returned to his car to attempt to stop the driver of the blue Chevy. He began following the truck, but at first did not see it. He then heard a loud vehicle accelerating from the north. The officer turned north onto South Oak Street. As he turned, he saw the truck's lights go on while the driver accelerated, traveling south on Oak Street. The officer turned around and saw the truck turn right on Clay Road. The officer attempted to stop the truck on Highway 5, but did not see it. He turned onto Clay Road and then saw the truck back out of the bowling alley parking lot, stop, and go forward back into the parking lot. Driving past Tiger Lanes, the officer retrieved the truck's license information. He then saw the truck back out of the parking lot into the street. He turned around and stopped the truck in the Tiger Lanes parking lot.

While approaching the vehicle, the officer saw the driver, Marcel Guhr, place a brown object in the bed of the truck and then walk away. The officer instructed Guhr to return to his vehicle. Guhr said "no." The officer again told Guhr to return to his vehicle. Guhr replied that he was not going back to his vehicle. The officer advised Guhr that he was under arrest (the first arrest) and, for the third time, instructed him to return to his vehicle. Guhr said "no" and that he was not going with the officer. The officer then grabbed Guhr's arm and walked with him back to the truck, where he handcuffed him. The officer noted, "I could smell a strong odor of an intoxicating beverage coming from Mr. Guhr." The officer asked Guhr how much he had had to drink that night. Guhr answered, "two drinks." The officer put Guhr in the patrol car and radioed for assistance.

The officer returned to Guhr's truck and retrieved the brown object he had seen him place in the bed of the truck: two bottles of Jose Cuervo tequila. The officer then advised Guhr that he was under arrest for driving while intoxicated (the second arrest).

The officer took Guhr to the Morgan County jail. Guhr willingly performed the field sobriety tests, but refused to submit to a chemical test of his breath to determine the alcohol content of his blood. The officer explained that his refusal would cause his driver's license to be revoked for one year. When Guhr responded that he knew that, the officer notified Guhr of his license revocation pursuant to section 577.041.1.

In addition to the narrative containing the above information, the officer completed a form "Alcohol Influence Report," in which he recorded his observations of Guhr. The form does not indicate when the observations were made.

Guhr filed a petition seeking review of his license revocation pursuant to section 577.041.4. The court admitted into evidence the director's exhibit A, which included Guhr's driving record, the officer's narrative, the alcohol influence report, and the director's notice of license revocation for refusal to submit to a chemical test. Guhr submitted no evidence. No witnesses testified.

The court found that the officer did not have probable cause to arrest Guhr for driving while intoxicated. It found that all evidence concerning his intoxication was determined post-arrest. It, therefore, declared void the director's order revoking Guhr's license and ordered the director to reinstate his driving privileges. The court prepared a written "Judgment and Order" but made no findings of fact.

The director appealed. The Court of Appeals, Western District, ordered transfer of the case after opinion. Mo. Const. art. V, sec. 10.

II. Statutory Framework

Missouri's implied consent law is so named because it provides that "any person who drives on the public highways is deemed to have consented to a chemical test to determine the alcohol or drug content of the person's blood." Hinnah v. Dir. of Revenue, 77 S.W.3d 616, 619 (Mo. banc 2002); sec. 577.020.1. See generally Edward H. Hunvald, Jr. & Franklin E. Zimring, Whatever Happened to Implied Consent? A Sounding, 33 Mo. L.Rev. 323, 324 (1968). The purpose of the law is "to rid the highways of drunk drivers." Hinnah, 77 S.W.3d at 619.

Under the implied consent statutory framework, a driver may refuse to submit to a chemical test requested by an officer. Sec. 577.041.1. If the driver refuses even after being informed that refusal will result in immediate revocation of the driver's license, the officer, on behalf of the director, personally serves the driver with notice of license revocation and issues a fifteen-day temporary permit. Id. The officer must submit to the director a certified report, made under penalties of perjury, that includes a statement that the officer had reasonable grounds to believe the driver was driving while intoxicated and that the driver refused to submit to a chemical test. Sec. 577.041.2. Upon receiving the officer's report, the director revokes the driver's license for one year. Sec. 577.041.3.

A driver whose license has been revoked for refusal to submit to a chemical test may petition for a hearing in the county of the arrest or stop. Sec. 577.041.4.

At the hearing the court shall determine only:

(1) Whether or not the person was arrested or stopped;

(2) Whether or not the officer had [r]easonable grounds to believe that the person was driving a motor vehicle while in an intoxicated or drugged condition; [and]

(3) Whether or not the person refused to submit to the test.

Id. "If the court determines any issue not to be in the affirmative, the court shall order the director to reinstate the license or permit to drive." Sec. 577.041.5. "The director, thus, has the burden of proof at the hearing." Hinnah, 77 S.W.3d at 620.

III. Standard of Review

The standard of review to be applied in this court-tried case is that of Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). This Court will affirm the judgment unless there is no substantial evidence to support it, it is against the weight of the evidence, it erroneously declares the law, or it erroneously applies the law. Id. at 32. Since this is a case in which the trial court found there was no probable cause, this Court must determine whether there was evidence of probable cause and, if so, whether the trial court's judgment was against the weight of that evidence.

IV. Issue on Appeal

Neither party disputes that Guhr was arrested and refused to submit to the chemical test requested. The only issue on appeal is whether the officer had "reasonable grounds" to believe Guhr was driving while intoxicated. Sec. 577.041.4. "`Reasonable grounds' is virtually synonymous with probable cause." Hinnah v. Dir. of Revenue, 77 S.W.3d 616, 620 (Mo. banc 2002).

"Whether there is probable cause to arrest depends on the information in the officers' possession prior to the arrest." Id. at 621. In this case, there were two arrests. The trial court stated at the hearing that "[a]ll evidence concerning his intoxication was determined post-arrest." Although it is unclear from the record, it appears the court made the probable cause determination by viewing the information in the officer's possession prior to the first arrest.

The officer's narrative does not give the reason for the first arrest, but it indicates that it occurred after the officer observed Guhr peeling out, driving without headlights, and repeatedly disobeying the officer's instructions after being stopped. Because the narrative does not indicate otherwise, the logical conclusion is that the first arrest was for these violations.

On the other hand, the officer's narrative specifically notes that he informed Guhr that the second arrest was for driving while intoxicated. Section 577.041 does not require the officer to have probable cause to believe the person was driving while intoxicated when the officer makes the initial stop or arrests the driver for other violations. Dixon v. Dir. of Revenue, 118 S.W.3d 302, 306 (Mo.App.2003). The probable cause determination must be made by evaluating the information in the officer's possession prior to the second arrest rather than the first.

Probable cause to arrest exists when...