Hamm v. Dir. of Revenue

• Decision Date: 12 July 2000
• Citation: 20 S.W.3d 924
• Parties: (Mo.App. S.D. 2000) Ricky Gerard Hamm, Respondent, v. Director of Revenue, Appellant. 23225 0
• Court: Missouri Court of Appeals

20 S.W.3d 924 (Mo.App. S.D. 2000)

Ricky Gerard Hamm, Respondent, v. Director of Revenue, Appellant.

23225

Missouri Court of Appeals Southern District

07/12/2000

Appeal From: Circuit Court of Scott County, Hon. David C. Mann

Counsel for Appellant: Evan J. Buchheim

Counsel for Respondent: No Appearance

Opinion Summary: None

Parrish, P.J., and Shrum, J., concur.

Kerry L. Montgomery, Judge

At 8:30 p.m. on December 30, 1998, Trooper Douglas McDaniel of the Missouri State Highway Patrol stopped a vehicle driven by Ricky Gerard Hamm (Driver) for driving down the center of a county road and forcing the trooper to veer onto the shoulder to avoid a collision. Upon approaching Driver, the trooper (1) smelled intoxicants on Driver's breath, (2) observed that Driver's eyes were bloodshot and watery, and (3) noticed that Driver's speech was slurred. Although Driver first denied drinking, he soon admitted having consumed "four to five" drinks.

The trooper then asked Driver to perform several field sobriety tests. Driver's performance on these tests coupled with the result of the "portable breath test" caused the trooper to believe Driver was intoxicated. Therefore, the trooper arrested Driver for driving while intoxicated (DWI) and transported him to the local sheriff's office. Once there, the trooper administered a "breath test" to Driver, using a "BAC Data Master" machine. The test result showed that Driver had a blood alcohol concentration of .11 percent.

Pursuant to section 302.505,¹ the Director of Revenue (Director) revoked Driver's operator's license. The revocation was upheld after an administrative review. Subsequently, Driver filed a Petition for Trial De Novo under section 302.535.

After presentation of evidence on Driver's petition, the trial court found that the trooper did not have probable cause to arrest driver for driving while intoxicated or that Driver was driving his vehicle with a "BAC" of .10 percent or greater. Consequently, the trial court set aside Director's revocation of driver's license.

Upon appeal, Director's sole point reads:

The trial court erred in setting aside the Director's revocation of Hamm's driving privilege because its decision was a misapplication of law and against the weight of the evidence in that the Director proved that: 1) the trooper had probable cause to arrest Hamm for DWI; 2) Hamm's blood alcohol content was at least .10%; and, 3) Hamm failed to present any evidence showing his blood alcohol content was below .10% when he was driving.

Our review of this case is governed by the principles established in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). We must affirm the judgment of the trial court unless it is unsupported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Id. at 32; Gordon v. Director of Revenue, 896 S.W.2d 737, 739 (Mo.App. 1995).

Under section 302.505.1, Director makes a prima facie case for the revocation of a person's license by establishing by a preponderance of the evidence that there was probable cause (1) to arrest the driver for DWI, and (2) to believe that, at the time of the arrest, the driver's blood alcohol content was at least ten-hundredths of one percent or more by weight. Smith v. Director of Revenue, 13 S.W.3d 700, 705 (Mo.App. 2000). "Once Director has established a prima facie case, the burden shifts to the driver to present evidence to rebut the prima facie case by a preponderance of the evidence." Hurley v. Director of Revenue, 982 S.W.2d 694, 696 (Mo.App. 1998).

We first address whether Director met his burden to show that there was probable cause to arrest Driver for DWI. Section 302.505.1 does not require that Director demonstrate the arresting officer had probable cause to believe Driver was committing an alcohol-related driving offense prior to the initial stop. Brandom v. Director of Revenue, 931 S.W.2d 510, 511 (Mo.App. 1996). "[P]robable cause to arrest for an alcohol-related traffic violation which supports an administrative license suspension may be developed after a motorist has stopped." Fischer v. Director of Revenue, 928 S.W.2d 424, 425 (Mo.App. 1996). "The alleged illegality of or lack of probable cause for the stop does not affect the admissibility of observations stemming from that stop in a civil revocation proceeding." Gordon v. Director of Revenue, 896 S.W.2d at 740. Section 302.505.1 focuses on the grounds for the DWI arrest, and not on the grounds for the stop. Koons v. Director of Revenue, 931 S.W.2d 210, 212 (Mo.App. 1996). "Probable cause exists when the facts and circumstances would warrant a person of reasonable caution to believe that an offense has been or is being committed." Kramer v. Director of Revenue, 924 S.W.2d 308, 310 (Mo.App. 1996). Whether probable cause exists to arrest a driver must be determined "'in relation to the circumstances as they would have appeared to a prudent, cautious, and trained police officer.'" Id. (quoting Chinnery v. Director of Revenue, 885 S.W.2d 50, 51 (Mo.App. 1994)).

Here, the trooper observed Driver as he...