Howard v. McNeill, 51227
| Decision Date | 23 September 1986 |
| Docket Number | No. 51227,51227 |
| Parties | Thomas J. HOWARD, Plaintiff-Respondent, v. Paul McNEILL, Jr., Director of Missouri Department of Revenue, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Richard L. Wieler, Jefferson City, for defendant-appellant.
Thomas J. Howard, pro se.
The Director of Revenue appeals from an order of the Circuit Court setting aside the Director's order revoking respondent's driving privileges for a period of one year. We reverse and remand to the trial court for reinstatement of the order of revocation.
The Director ordered the revocation after receiving an affidavit from Highway Patrol Officer Paul D. Cordia, as contemplated by § 577.041, RSMo Cum.Supp.1984. The affidavit stated in substance that at 1:50 a.m. on September 19, 1985, Officer Cordia, having "reasonable grounds" to believe respondent Thomas J. Howard operated a motor vehicle "while in an intoxicated or drugged condition," placed Howard under arrest. The affidavit continued that Cordia requested Howard to submit to a chemical test to determine "the alcoholic and/or drug content of his blood," that Cordia warned Howard refusal to take the test could result in a one year revocation of Howard's driver's license, but that Howard refused the test.
After the Director's order of revocation was issued, respondent filed his petition for review in Circuit Court as allowed by § 577.041, supra. At the hearing on the petition, Officer Cordia testified that he received a report of an automobile collision which had occurred at 12:55 a.m. on September 19, 1985. He went to the scene of the two-vehicle mishap, arriving at approximately 1:20 a.m. Present at the scene were one of the two drivers involved in the collision, Michael Scamell, and Charles Coffman, City Marshal of St. Mary's, Missouri. Marshal Coffman advised Officer Cordia that respondent had been the driver of the other vehicle and that Coffman had permitted him to depart the scene to seek medical attention at a local hospital. Respondent had left in an automobile driven by a friend, Lloyd Shaver, prior to Cordia's arrival. A radio call to the hospital revealed that respondent had not arrived. Coffman supplied Cordia with a description of Shaver's automobile, and Cordia left the scene. When he saw a vehicle matching the description of Shaver's, Cordia stopped it and found respondent riding in it as a passenger. Cordia stated this stop occurred fifty to sixty minutes after the accident. Respondent appeared very intoxicated; Cordia placed him under arrest for driving while intoxicated at the time of the collision and requested that respondent submit to a test to determine his blood alcohol content. Respondent refused.
At the hearing, respondent admitted that he was intoxicated at the time of the arrest, but explained that the condition was brought about by his consumption of a half pint of whiskey supplied to him by Lloyd Shaver after the accident. This claim was corroborated by Shaver's testimony, but neither Shaver nor respondent made any such statement to Officer Cordia prior to or at the time of the arrest. Similarly, City Marshal Coffman and Michael Scamell testified that they detected no sign that respondent had been drinking when they were with him at the scene of the accident. No one had voiced to Cordia any fact or opinion concerning respondent's sobriety or lack thereof at the time of the accident; and, thus, the only facts before Cordia when the arrest was made were respondent's undisputed inebriation at the time and his failure to go to the hospital. 1
The statute which provides for the hearing, § 577.041, states in part:
At the hearing the judge shall determine only:
(1) Whether or not the person was arrested;
(2) Whether or not the arresting officer had reasonable grounds to believe that the person was driving a motor vehicle while in an intoxicated condition; and
(3) Whether or not the person refused to submit to the test.
3. If the judge determines any issue not to be in the affirmative, he shall order the director to reinstate the license or permit to drive.
Accordingly, in its entry of judgment setting aside the Director's order of revocation, the trial court found:
... that at the time of the accident aforesaid, Plaintiff was not intoxicating [sic] nor is there any evidence Plaintiff was drinking and, therefore, the officer making the arrest and requesting Plaintiff to take the breathalyzer was without probable cause to believe that Plaintiff was intoxicated at the time of the accident, or was driving a vehicle while intoxicated.
Section 577.039, RSMo Cum.Supp.1984, specifically authorizes a warrantless arrest by a law enforcement officer "including a uniformed member of the state highway patrol" for driving while intoxicated, § 577.010, or driving with excessive blood alcohol content, § 577.012, when the...
To continue reading
Request your trial
-
Findley v. Director of Revenue, 27136.
...because that information was not communicated to Finley prior to Petitioner's arrest.4 See Cain, 130 S.W.3d at 7; Howard v. McNeill, 716 S.W.2d 912, 915 (Mo.App.1986). In the second prong of Petitioner's argument, he contends the judgment is against the weight of the evidence because Finley......
-
Warren v. Dir. Revenue
...review, and the deference given to implicit and explicit factual findings.” White, 321 S.W.3d at 305 n. 6. 2. Neither Howard v. McNeill, 716 S.W.2d 912, 915 (Mo.App.1986), nor Coffin v. Dir. of Revenue, 277 S.W.3d 865 (Mo.App.2009), also cited by Director, offer any support for Director's p......
-
McFall v. Director, Dept. of Revenue, 26189.
...the burden of proof throughout the proceeding. Verdoorn, 119 S.W.3d at 546. The disposition of this case is governed by Howard v. McNeill, 716 S.W.2d 912 (Mo.App.1986).4 In McNeill, Officer Cordia received a report of an automobile collision which had occurred at 12:55 a.m. and he arrived a......
-
Wilcox v. Director of Revenue, WD
...170 (Mo.App.1987). The essence of all definitions of "probable cause" is a "reasonable ground" for belief of guilt. Howard v. McNeill, 716 S.W.2d 912, 915 n. 2 (Mo.App.1986). Probable cause for arrest exists when an officer possesses facts which would justify a person of reasonable caution ......