Harper v. Director of Revenue
| Decision Date | 01 April 2009 |
| Docket Number | No. SD 29180.,SD 29180. |
| Citation | 279 S.W.3d 251 |
| Parties | Riley Calvin HARPER, Petitioner-Appellant, v. DIRECTOR OF REVENUE, Respondent-Respondent. |
| Court | Missouri Court of Appeals |
Justin H. Nelson, Garrett & Silvey, West Plains, Missouri, for Appellant.
Chris Koster, Attorney General, and Jeremiah J. Morgan, Deputy Solicitor General, Jefferson City, Missouri, for Respondent.
Following an administrative suspension of his driving privileges for driving with excessive blood alcohol content, Riley Calvin Harper ("Petitioner") petitioned for judicial review in the Circuit Court of Howell County. The circuit court affirmed the suspension, and Petitioner timely appealed. This Court affirms the trial court's judgment.
At trial, the parties stipulated that the case be submitted on the record, which consisted of properly-certified records from the Department of Revenue, pursuant to section 302.312, RSMo 2000. No other evidence was presented to the trial court.
The arresting officer's narrative report and probable cause statement were included as part of the record before the circuit court, in accordance with section 302.510, RSMo Cum.Supp. 2005. These documents established that on October 14, 2007, sheriff's deputy Torrey Thompson ("Deputy Thompson") was dispatched to County Road 6970 in Howell County after it was reported that a male subject was "passed out" in a blue Toyota pickup truck. When Deputy Thompson arrived at 8:17 a.m., he noted that the truck's engine was running, and its headlights and taillights were on. The truck was headed south and parked at an angle in the roadway. Petitioner was passed out sitting in the passenger's seat.
As Deputy Thompson approached, Petitioner did not acknowledge his presence. Thompson opened the driver's-side door and turned off the engine. Thompson spoke to Petitioner, but he received no response. When he announced, "Sheriff's office, wake up[,]" Petitioner only slightly stirred. After another minute or two of Deputy Thompson continuing to announce his presence, Petitioner became aware of the deputy's presence.
After Petitioner "came to," Deputy Thompson observed signs of intoxication: "an overwhelming odor of intoxicants" from the vehicle's interior; "extremely bloodshot, glassy, watery eyes"; slurred speech; and slow reactions. Petitioner dropped his license when Thompson asked him to produce it and continued to search the seat for it after Thompson picked it up and was inspecting it. Upon questioning, Petitioner stated he did not know why he was parked in the middle of the road. Petitioner said that he had been watching a football game at a friend's house, and later he went to play poker. He claimed that someone named John had been driving and that John had walked away from the vehicle toward a house nearby. Deputy Thompson observed, however, that
Deputy Thompson asked Petitioner again who had been with him. Petitioner hesitated and told Thompson he did not want "to rat no one out[,]" because the driver would be in trouble for leaving the truck on a county road. Petitioner then named Bruce Sexton as the driver, but he did not know where Sexton went and did not know how long he had been there. Petitioner claimed he did not know Sexton very well and did not know his address or phone number. Petitioner stated that Sexton would not admit to driving because he would be afraid of getting into trouble. When Deputy Thompson told Petitioner that he was having trouble believing his story, Petitioner stated, "I know you think I'm lying, and it kind of looks that way."
Deputy Thompson administered field sobriety tests. On the horizontal gaze nystagmus test, the deputy "observed all six clues of impairment ... including very distinct vertical nystagmus." In performing the one-legged stand, Petitioner swayed while balancing, used his arms for balance, and counted only to 9 within thirty seconds. When asked to recite the alphabet, Petitioner, who had graduated high school and attended college, stopped at "s" and asked to start over. On his second attempt, he recited the alphabet correctly, although Deputy Thompson noted he would pause for a moment before being able to recite the next letter or letters. Deputy Thompson determined that there was "probable cause" to believe that Petitioner had operated a motor vehicle while in an intoxicated condition, and Petitioner was arrested and transported to the sheriff's office.
Within the "Interview" section of the Alcohol Influence Report, an arresting officer can record the responses given by the arrestee. Here, Deputy Thompson indicated that Petitioner admitted drinking, but he denied operating the vehicle. In response to the question, "What were you doing during the last three hours?" Deputy Thompson's report states: "Sleeping/really don't remember." The report further indicates that Petitioner was at a buddy's house drinking "Seagram's and Seven" and that he started drinking at 7:00 p.m. and stopped drinking at 2:00 a.m. In response to how much he had to drink, the report indicated "No clue 5 or 6," but Petitioner denied that he was under the influence of an alcoholic beverage.
After Petitioner was advised of his Miranda1 rights and informed of the implied consent law, he submitted to a breath test, administered at 9:13 a.m., which indicated a blood alcohol content level of .222. Deputy Thompson served Petitioner with a notice of suspension of his driving privileges under section 302.505, RSMo Supp. 2001. Subsequently, Petitioner requested an administrative hearing on the suspension, pursuant to section 302.530.1, RSMo Cum.Supp. 2005, which was held December 6, 2007. On December 19, 2007, the administrative suspension of Petitioner's driving privileges was sustained, after which Petitioner petitioned for a trial de novo in the Circuit Court of Howell County. Section 302.535.1, RSMo Cum.Supp. 2002. After a trial, the trial court affirmed the administrative suspension of Petitioner's driving privileges, and Petitioner now appeals.
Upon review of a driver's license suspension, this court will affirm the trial court's judgment 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. Guhr v. Dir. of Revenue, 228 S.W.3d 581, 586 (Mo. banc 2007). "We view the evidence and the reasonable inferences drawn therefrom in the light most favorable to the judgment." Kisker v. Dir. of Revenue, 147 S.W.3d 875, 876 (Mo.App.2004) (citing Terry v. Dir. of Revenue, 14 S.W.3d 722, 724 (Mo.App.2000)). Where the facts are contested, we "must defer to the trial court's determination regarding those facts." Guhr, 228 S.W.3d at 586. If "the facts are not contested, then the issue is legal and there is no finding of fact to defer to." Id.
Appellant's statement of facts consists of the following, in toto:
On October 14, 2007, at approximately 8:17 a.m. a Howell County Sheriff's Department Deputy located a vehicle on a county road parked on the side of the road. [L.F. 21]. The officer found the Appellant asleep in the passenger seat of the vehicle. Id. The officer performed a series of field sobriety tests and administered a breath test. [L.F. 23]. The results indicated the appellant was intoxicated at the time of arrest. Id. The officer did not observe the Appellant operating the vehicle. The vehicle was not in motion when the officer came upon the vehicle parked on the side of the road. There was no testimony from any third party witnesses who observed the Appellant driving the vehicle. There was no testimony from the officer or any third party witness tying the Appellant's intoxication to the operation of the motor vehicle.
On December 19, 2007, a decision was rendered by the Department of Revenue suspending the Appellant's driving privileges. [L.F. 6] On December 21, 2007, the Appellant did timely file a Petition for Judicial Review of the Administrative Suspension. [L.F. 5].
On April 24, 2008, a hearing was conducted on the Appellant's Petition and on April 30, 2008, the Court entered Judgment affirmed the Director's decision to suspend the Appellant's driving privileges. [L.F. 33].
Rule 84.04(c) provides that the statement of facts "shall be a fair and concise statement of the facts relevant to the questions presented for determination without argument."2 "The primary purpose of the statement of facts is `to afford an immediate, accurate, complete and unbiased understanding of the facts of the case.'" State ex rel. Mo. Highway and Transp. Comm'n v. Pipkin, 818 S.W.2d 688, 690 (Mo.App.1991) (quoting Wipfler v. Basler, 250 S.W.2d 982, 984 (Mo.1952)). "[T]he appellant must define the scope of the controversy by stating the relevant facts fairly and concisely." Id.
As in Rushing v. City of Springfield, 180 S.W.3d 538, 540 (Mo.App.2006) (quoting Kleinhammer v. Kleinhammer, 225 S.W.2d 377, 378 (Mo.App.1949)), "`a mere reading of the statement of facts in [Appellant's] brief discloses that [Appellant has] ignored the evidence presented on behalf of [Respondent].'" A statement of facts "which omits the essential facts on which an appellant's adversary relies cannot be deemed a substantial compliance with said rule ... [and] gives us no intelligent understanding of the facts of the case."
"Candor, accuracy and fairness are indispensable in a proper statement of facts." S.R. v. S.M.R., 709 S.W.2d 910, 912 (Mo.App.1986). "It is substantially impossible to place too much emphasis upon the statement of facts in the brief." Thompson v. Thompson, 786 S.W.2d 891, 892 ...
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