HOLLOWAY v. Dir. of REVENUE

• Decision Date: 21 October 2010
• Docket Number: No. SD 30248.,SD 30248.
• Citation: 324 S.W.3d 768
• Parties: Donna HOLLOWAY, Respondent, v. DIRECTOR OF REVENUE, State of Missouri, Appellant.
• Court: Missouri Court of Appeals

324 S.W.3d 768

Donna HOLLOWAY, Respondent,

v.DIRECTOR OF REVENUE, State of Missouri, Appellant.

No. SD 30248.

Missouri Court of Appeals, Southern District,Division Two.

Oct. 21, 2010.

COPYRIGHT MATERIAL OMITTED.

Chris Koster, Attorney General and Jonathan H. Hale, Special Assistant Attorney General, Jefferson City, for Appellant.

John M. Albright, Poplar Bluff, for Respondent.

WILLIAM W. FRANCIS, JR., Judge.

On February 25, 2009, the Director of Revenue (“the Director”) revoked the driving privileges of Donna Holloway (“Respondent”) pursuant to section 577.041 ¹ after she refused to submit to a chemical test to determine her blood alcohol content (“BAC”). On August 17, 2009, a post-revocation hearing was conducted and the trial court found in favor of Respondent and ordered the Director to remove the revocation from her driving record. This appeal followed. We affirm the judgment of the trial court.

Facts and Procedural History

Corporal Barry Matthews (“Corporal Matthews”), of the Missouri State Highway Patrol, worked the overnight shift from the evening of February 9, 2009 until 3:00 a.m., on February 10, 2009. By 11:30 a.m., on February 10, he was back on duty for a court appearance that lasted approximately two hours. Later that same day he began an evening shift. At 10:30 p.m., near the end of his shift, he was en route to his residence when he observed a vehicle in the median of Highway U.S. 67 and stopped to investigate. It was raining at the time.

When Corporal Matthews approached the passenger side of the vehicle he found Respondent sitting in the driver's seat with the engine running. He told her to roll down the window. Respondent appeared confused and lowered both back windows before she finally found the button to lower the passenger-side window where Corporal Matthews was standing. Since Respondent did not appear to be injured, Corporal Matthews requested that she exit the vehicle. Respondent smelled strongly of alcohol, had significant difficulty walking, and could not stand without swaying. Because it was muddy in the median, Corporal Matthews assisted Respondent up to the shoulder of the road. At one point, he had to stop her from walking into traffic.

Corporal Matthews then administered the Horizontal Gaze Nystagmus (“HGN”) test and Respondent exhibited all six indicators of intoxication. No other standardized field sobriety tests (SFST's) were performed, and no other investigation was completed prior to Respondent's arrest. Based on Corporal Matthews' observations-the unsteady walking, the swaying while standing, the HGN results, the odor of alcohol, bloodshot and watery eyes, confused speech, and the totality of the circumstances-he was absolutely certain Respondent was intoxicated and arrested her for driving while intoxicated (“DWI”). Respondent's arrest was completed in a short period of time after Corporal Matthews' initial contact with her.

Corporal Mike Slaughter (“Corporal Slaughter”) arrived at the scene, but remained in his vehicle until Corporal Matthews arrested Respondent. Following the arrest, Respondent was turned over to Corporal Slaughter to complete the investigation and process Respondent since Corporal Matthews was tired from his demanding work schedule and “due off the next day.” Corporal Slaughter transported Respondent to the sheriff's department where he read her Missouri's implied consent law. ² Respondent requested an opportunity to speak with an attorney and was provided approximately twenty minutes to do so. Corporal Slaughter again advised Respondent of the implied consent law and requested a breath test and a blood sample. She refused both requests. Corporal Slaughter signed and completed an Alcohol Influence Report (“AIR”) for Respondent.

The Director notified Respondent that her license would be revoked on February 25, 2009, pursuant to section 577.041. Respondent subsequently filed a petition for a post-revocation hearing.

On August 17, 2009, at the hearing of this matter, Corporal Matthews testified that out of concern for Respondent's safety, and due to the rainy weather conditions, he did not perform additional SFST's. He did not carry a portable breathalyzer. He testified that he asked Respondent why she was in the median, but could not recall her answer. Further, he did not remember if he asked Respondent if she had been drinking. There was also no evidence that Corporal Matthews ever requested her license, registration, or proof of insurance.

Corporal Matthews also testified regarding the HGN test. He admitted his initial HGN training preceded the National Highway Traffic Safety Administration's (“NHTSA”) approval of the test, but could not recall whether or not he had received any training on the HGN exam after NHTSA standardized the exam. He acknowledged the possibility that his HGN test training was designed to indicate the probability an individual would have a BAC over .10 percent if they had all six indicators. The legal presumed limit at the time of Respondent's arrest was only .08 percent BAC. He did not know the accuracy of the HGN examination, how many times each sequence of the HGN exam should be performed, nor how far from the test subject's eyes the visual stimulus should be held. He testified that the standardized procedure could be administered in different ways on different people. Corporal Matthews testified that even without the HGN results, his conclusion was that Respondent was intoxicated.

At the hearing, Corporal Slaughter testified he observed most of the indicia of intoxication that Corporal Matthews observed, but that his observations were after Respondent was placed under arrest and would not have any effect with regard to probable cause for the arrest. On cross-examination, Corporal Slaughter testified the HGN test takes just a little over a minute to administer, and a DWI arrest could possibly be completed in less than two minutes. Corporal Slaughter also testified regarding the AIR he completed for Respondent. He acknowledged the observations in the report were from him and Corporal Matthews. According to the AIR, the time of initial contact was “2332” and the time of the arrest was “2335.” ³ Corporal Slaughter agreed that this time frame could correspond to three-plus minutes or just a minute and a few seconds, depending upon the location of the second hand.

Respondent contested all of the Director's evidence during cross-examination. She also testified that she spoke to an attorney and was given two opportunities to consent to a breath test but refused both.

The trial court ordered the Director to reinstate Respondent's driving privileges, based upon the sole finding that the Director failed to produce evidence of probable cause for the arrest. Specifically, the trial court found that: (1) “the arrest could have occurred in as little as one minute and some odd seconds”; (2) the HGN test was not in compliance with NHTSA standards and, therefore, was unreliable; and (3) the AIR was a memorialization of Corporal Slaughter's post-arrest observations. The Director filed a timely Notice of Appeal.

The Director contends the trial court erred in reinstating Respondent's driving privileges and concluding there was no probable cause to arrest Respondent for DWI because substantial evidence in the record supported a finding of probable cause. Respondent contends the trial court correctly determined there was not sufficient probable cause. The sole issue for review is whether the trial court was persuaded the officer had reasonable grounds to believe Respondent was driving while intoxicated.

The Statutory Framework

[1] The only three issues to be decided at a post-revocation hearing are: “(1) whether or not the person was arrested or stopped; (2) whether the officer had reasonable 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.” Hinnah v. Director of Revenue, 77 S.W.3d 616, 620 (Mo. banc 2002); § 577.041.4. “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.” § 577.041.5.

[2] At the hearing, the burden of proof rests on the Director. Hinnah, 77 S.W.3d at 620. The Supreme Court of Missouri has explained:

When the burden of proof is placed on a party for a claim that is denied, the trier of fact has the right to believe or disbelieve that party's uncontradicted or uncontroverted evidence. Bakelite Co. v. Miller, 372 S.W.2d 867, 871 (Mo.1963). If the trier of fact does not believe the evidence of the party bearing the burden, it properly can find for the other party. Id. ‘Generally, the party not having the burden of proof on an issue need not offer any evidence concerning it.’ Stiff v. Stiff, 989 S.W.2d 623, 628 (Mo.App.1999).

White v. Director, 321 S.W.3d 298, 305 (Mo. banc 2010). ⁴

Standard of Review

[3] [4] [5] [6] [7] The trial court's probable cause determination is reviewed in a two-step analysis: (1) a determination of the historical facts; and (2) the application of the law to those facts. White, 321 S.W.3d at 309-11. In the first part of the analysis, we review the probable cause ⁵ determination under an abuse of discretion standard and give deference to the inferences the trial court makes from historical facts, including any credibility determinations. White, 321 S.W.3d at 310-11.

Only if the trial court's judgment is clearly erroneous will an appellate court reverse. This standard of review gives appropriate deference to the trial court's ability to weigh the credibility of the witnesses, and acknowledges the inability of an appellate court to determine credibility from the lifeless pages of a record. Thus, if the trial court's ruling is plausible in light of the record viewed in its entirety, this Court ‘may not reverse it even though convinced that had it been...