Harlan v. Dir. of Revenue
| Decision Date | 24 February 2011 |
| Docket Number | No. SD 30505.,SD 30505. |
| Citation | 334 S.W.3d 673 |
| Parties | Jimmy Don HARLAN, Applicant–Respondent,v.DIRECTOR OF REVENUE, State of MISSOURI, Respondent–Appellant. |
| Court | Missouri Court of Appeals |
OPINION TEXT STARTS HERE
Jonathan H. Hale, Jefferson City, MO, for Appellant.Tony Skouby and David Simpson, St. James, MO, for Respondent.DON E. BURRELL, Judge.
The Director of Revenue (“Director”) appeals a judgment of the circuit court ordering her to reinstate the driving privileges of Jimmy Don Harlan (“Driver”). Director revoked Driver's license under section 577.041 1 in response to Driver's refusal to submit to a breathalyzer test after being arrested for driving while intoxicated.2 In a single point relied on, Director contends the trial court “misapplied the law, in that [the arresting officer]'s uncontested observations constitute[d] reasonable grounds to believe that [Driver] was driving while intoxicated.” We agree and reverse the decision of the circuit court.
On March 10, 2004, Driver filed a petition under section 577.041.2, asking the circuit court to review and reverse Director's administrative revocation of his driver's license. Just shy of six years after that petition was filed, on February 24, 2010,3 the matter was finally tried before the circuit court.
The trial began with Director submitting her case by offering Exhibit A, Director's certified records.4 While acknowledging that the circuit court was required to receive Director's certified records into evidence, Driver's attorney argued that the alcohol influence report (“AIR”) used by the arresting officer was on an old form that did not list a certification that the officer had received eight hours of training on the horizontal gaze nystagmus test (“HGN”). Driver's attorney opined that “[w]ithout that statutory foundation I don't believe that the HGN is admissible and should not be considered by the Court as to whether the officer had reasonable grounds to believe that [Driver] was operating a motor vehicle while intoxicated.” Director's attorney did not challenge Driver's lack of foundation argument. Instead, she argued that Director's evidence was sufficient to show under the totality of the circumstances that the officer had “probable cause to arrest” Driver.
The evidence in Exhibit A was as follows. On March 4th or 5th, 2004,5 at 8:00 p.m., Driver was stopped at a safety checkpoint by Rolla police officer John Frey (“Officer Frey”). Officer Frey was checking passing motorists to see if they had valid driver's licenses and insurance cards. When Officer Frey stopped Driver, he noticed a moderate odor of alcohol coming from Driver's breath and vehicle. After fumbling through his wallet, Driver produced his driver's license. While Driver continued looking for his insurance card, Officer Frey noticed an open can of beer sitting on the center arm rest of Driver's vehicle. When Officer Frey asked Driver whether he had been drinking, Driver said that he “just opened one up.”
Officer Frey had Driver exit his vehicle and asked him to submit to a portable breathalyzer test (“PBT”). Driver refused to take the PBT. Officer Frey then administered a series of standardized field sobriety tests, which included: the HGN, the “walk-and-turn” test, and the “one-leg stand” test. During the walk-and-turn, Driver failed to maintain a heel-to-toe stance, commenced the test prior to the completion of the officer's instructions, stopped walking to steady himself, and did not touch his heel to his toe. While performing the one-leg stand, Driver swayed, used his arms to balance himself, and put his foot down.
Officer Frey noted in his AIR that Driver had watery and bloodshot eyes, swayed when walking and turning, used profanity, and had an uncooperative attitude. The AIR also reflects that Officer Frey asked Driver, among other things, the following questions and received the following responses:
Officer Frey determined that Driver had been driving while intoxicated and placed him under arrest. Officer Frey transported Driver to the Rolla police station, where he read Missouri's implied consent law to Driver and informed him of his Miranda 6 rights. Driver then refused Officer Frey's request to submit to a chemical test of his breath.
After Director's counsel failed to counter Driver's foundation objection to the HGN on the grounds that the AIR did not indicate Officer Frey had been trained on the test, the following exchange occurred:
THE COURT: All right. [Director] has no further evidence? 7
[Director's counsel] That's correct.
THE COURT: [to Driver's counsel] Do you wish to present evidence?
[Driver's counsel]: No, sir.
THE COURT: Do either of you wish to be heard any further?
[Driver's counsel]: Judge, again, the only point that [Driver] would make on this is that there were no reasonable grounds. I think that the—The record as—as presented by [Director] includes a pretty clear statement that [Driver] was advised of his Implied Consent rights, and then refused to give a sample of his breath on request of the officer.
[Counsel then notes that no erratic operation of the vehicle led to the stop] There is a—an indication of a moderate odor of intoxicants. As [Director] said, that [Driver] had an open beer in the vehicle. And there would be a moderate odor just by the presence of that open beer.
It was 8:00 at night. [Driver's] eyes were watery and bloodshot. The explanation for that is that is the late hour. His balance and walking and turning both indicate swaying, but there was [sic] other selections [boxes to check on the AIR] that the officer could have made. There's wobbling, stumbling, falling, uncertain staggering, falling. Swaying is a rather innocuous indication of intoxication. Otherwise, there are no other observations by the officer.
[Driver] was—His speech was clear. He was not slurry. He was not confused. He was able to answer all the questions that the officer asked of him, perform some field sobriety tests. There was indication on the walk-and-turn that he didn't maintain the heel-to-toe stance at the beginning. He started before instructions were finished. He also said that he stopped while walking to steady himself, and he did not touch heel-to-toe. But the other more serious—or more indicative indications of intoxication are—are not noted. In that he did not lose his balance while he was walking for the entire number of steps. He did not use his arms for balance. He didn't lose his balance while turning, or make an improper turn. And he did the correct number of steps.
Again, Judge, I don't want to get into the specifics on the one leg stand, but again, he put his foot down we don't know how many times, but otherwise he was able to perform that test.
Again, I know [Director] is going to argue on the totality of the circumstances this is reasonable grounds to find that [Driver] was intoxicated while he was operating that motor vehicle. And [Driver]'s argument would be that no, it is not sufficient grounds to find that there was probable cause to believe that he was intoxicated.
THE COURT: So as he put words in your mouth, is that your position?
[Director's counsel]: That is my position, Your Honor.
I would ask [Driver's counsel] to prepare a judgment to that effect.
[Driver's counsel]: Yes, sir.
THE COURT: I appreciate both of you appearing. We'll be off the record.
(Emphasis added).
The judgment thereafter entered by the circuit court in favor of Driver stated, inter alia:
1. That portion of [Director]'s exhibit A relating to administration and interpretation of the [HGN] test lacks evidentiary foundation and the same is disregarded by the Court in its decision.
2. Under the totality of the circumstances, the Court finds that [Officer Frey] lacked reasonable grounds to believe that [Driver] was operating a motor vehicle while in an intoxicated condition.
3. [Director] has failed to meet her burden of proof regarding the elements set out in [s]ection 577.041.4, RSMo.
This appeal timely followed.
“In appeals from a court-tried civil case, the trial court's judgment will be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law.” White, 321 S.W.3d at 307–08. “When the facts relevant to an issue are contested, the reviewing court defers to the trial court's assessment of the evidence.” Id. at 308. Conversely, “when the evidence is uncontested ... no deference is given to the trial court's findings.” Id. (emphasis in original).
Evidence is uncontested if the issue before the trial court involves only stipulated facts and does not involve resolution by the trial court of contested testimony or a party “has admitted in its pleadings, by counsel, or through the [party's] individual testimony the basic facts of [other party's] case.” Id. (emphasis added). When the evidence is uncontested, “the only question before the appellate court is whether the trial court drew the proper legal conclusions from the facts...
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