Howe v. Dir. Revenue

• Decision Date: 13 February 2019
• Docket Number: No. ED 106315,ED 106315
• Citation: 575 S.W.3d 246
• Parties: Kristin L. HOWE, Respondent, v. DIRECTOR OF REVENUE, State of Missouri, Appellant.
• Court: Missouri Court of Appeals

575 S.W.3d 246

Kristin L. HOWE, Respondent,

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

No. ED 106315

Missouri Court of Appeals, Eastern District, DIVISION FOUR.

FILED: February 13, 2019

Motion for Rehearing and/or Transfer to Supreme Court Denied March 21, 2019

Application for Transfer Denied June 4, 2019

Morgan L. Brewington, P.O. Box 475, Jefferson City, MO 65105, for appellant.

Laurie A. Dodd, 332 B. Jungermann Road, St. Peters, MO 63376, for respondent.

KURT S. ODENWALD, Presiding Judge

Introduction

The Director of Revenue (the "Director") appeals from the circuit court’s judgment reinstating the driving privileges of Kristin L. Howe ("Howe") following revocation of Howe’s license for refusing to submit to a chemical test. The Director argues the circuit court erred in reinstating Howe’s driving privileges because Howe refused the law enforcement officer’s request to submit to a blood test. Because the officer did not give Howe the required implied consent warning for the blood test, the officer’s request was insufficient under Section 577.041.2.¹ As a result, the Director cannot show Howe validly refused to submit to a properly requested blood test. Because a valid refusal was required to uphold Howe’s license revocation, we affirm the judgment of the circuit court.

Factual and Procedural History

The Director raises two points on appeal. Because we find the second point dispositive to this appeal, we review only the facts pertinent to this point.

The evidence relevant to the dispositive point on appeal is as follows: Trooper Adam Hitt ("Trooper Hitt") stopped Howe for failure to dim her lights to oncoming traffic. Trooper Hitt observed that Howe had bloodshot, glassy eyes and an odor of alcohol. Howe admitted to having consumed one drink. Subsequently, Trooper Hitt conducted field sobriety tests to determine whether Howe was driving under the influence of alcohol ("DWI"). Trooper Hitt then arrested Howe for DWI.

At the sheriff’s office, Trooper Hitt read Howe the implied consent warning for a breath test as contained in the Alcohol Influence Report ("AIR") from his patrol laptop. Trooper Hitt manually checked the boxes of the AIR as he read the consent to Howe. Trooper Hitt first read the contents of Box 1 to Howe: "You are under arrest and I have reasonable grounds to believe you were driving a motor vehicle while you were in an intoxicated or drugged condition." Trooper Hitt next read the contents of Box 2 to Howe. Box 2 ends with three blank boxes that the officer completes by identifying the test or tests requested. Here, Box 2 reads; "To determine the alcohol or drug content of your blood, I am requesting you submit to a chemical test of your breath."

Trooper Hitt read Howe the remaining boxes of the implied consent warning as those warnings related to a breath test. The warnings advised Howe that a refusal to submit to the test would result in her license being revoked for one year. Howe submitted to the breath test. Trooper Hitt administered the breath test using an Intox DMT device three times. The tests on Howe’s breath samples were unsuccessful due to radio frequency interference.²

Trooper Hitt then asked Howe to submit to a blood draw at Hannibal Regional Hospital to determine her blood alcohol content. Trooper Hitt did not read to Howe any implied consent warning for the blood test. Trooper Hitt did not inform Howe that her refusal to submit to the blood test would result in the revocation of her license. Howe did not agree to allow her blood to be drawn for purposes of determining the alcohol level in her blood. Trooper Hitt then personally served Howe with a notice of license revocation on behalf of the Director for failure to submit to a chemical test.

Howe petitioned the circuit court for review of her license revocation. The circuit court conducted a trial and entered judgment in favor of Howe, finding that there was no probable cause for Howe’s arrest. The circuit court further found that "[b]ecause [Howe] was not warned that her driver’s license would be revoked for refusal to submit to a blood test, her refusal is not valid." The circuit court then set aside the revocation of Howe’s driver’s license.

The Director now appeals.

Points on Appeal

The Director raises two points challenging the circuit court’s reinstatement of Howe’s driving privileges. In Point One, the Director claims the circuit court erred in finding the officer lacked probable cause to arrest Howe for driving while intoxicated, because the officer made observations of Howe’s insobriety despite improperly administering the sobriety tests. In Point Two, the Director maintains that Trooper Hitt was not required to repeat the implied consent warning to Howe when he asked her to submit to the blood test. Accordingly, the Director contends that the circuit court erred in finding Howe did not knowingly refuse to submit to Trooper Hitt’s request for the blood test.

Standard of Review

As in other court-tried cases, we will uphold the judgment of the circuit court in a driver’s license revocation case unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously applies the law. Hearne v. Dir. of Revenue, 559 S.W.3d 66, 68 (Mo. App. E.D. 2018) (citing White v. Dir. of Revenue, 321 S.W.3d 298, 307-08 (Mo. banc 2010) ); see also Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). We defer to the circuit court on issues of fact and credibility. White, 321 S.W.3d at 308. We will affirm the circuit court’s judgment in a driver’s license revocation case under any reasonable theory supported by the evidence, Mayfield v. Dir. of Revenue, 100 S.W.3d 847, 848 (Mo. App. S.D. 2003).

The Director bears the burden of establishing a prima facie case for license revocation by a preponderance of the evidence, Hearne, 559 S.W.3d at 68 ; see also White, 321 S.W.3d at 307. Specifically, for a circuit court to uphold a driver’s license revocation for failure to submit to chemical testing, the Director must show that: (1) the driver was arrested; (2) the officer had probable cause to believe the driver was driving while intoxicated; and (3) the driver refused to submit to the test. Section 302.574.4;³ Davis v. Dir. of Revenue, 416 S.W.3d 826, 829 (Mo. App. S.D. 2013). The Director's failure to prove any one of the three elements requires reinstatement of the driver’s license. Section 302.574.5; Mayfield, 100 S.W.3d at 849.

Discussion

The Director challenges two elements of Section 302.574.4—whether the officer had probable cause to arrest Howe for DWI (Point One) and whether Howe refused to submit to the blood test (Point Two). The Director must prevail on both points for us to reverse the circuit court’s reinstatement of Howe’s driving privileges. Section 302.574.5; Mayfield, 100 S.W.3d at 849. Because we hold that Howe did not refuse to submit to a proper request to submit to a blood test, Point Two is dispositive, and we need not address Point One.

Section 577.020 governs implied consent for chemical tests and states that DWI-arrestees are deemed to have consented to having their breath, blood, saliva, or urine chemically tested to determine their blood alcohol content. Section 577.020.1; Davis, 416 S.W.3d at 829. However, Missouri’s "implied consent law demands that an arrestee receive certain information prior to being asked to submit to a chemical test to determine blood alcohol content." Simon v. Dir. of Revenue, 509 S.W.3d 135, 138 (Mo. App. S.D. 2016). Specifically, Section 577.041.2 mandates that the officer give the reasons for requesting the test as well as "inform the person that evidence of refusal to take the test may be used against such person." Importantly, "[i]f such person was operating a vehicle prior to such detention, stop, or arrest, he or she shall further be informed that his or her license shall be immediately revoked upon refusal to take the test." Section 577.041.2. Significantly, "[n]o refusal is valid if this statutorily necessary information is not conveyed." Simon, 509 S.W.3d at 138 (internal citation omitted); Mayfield, 100 S.W.3d at 850 (internal citation omitted). Section 302.574.1 authorizes an officer to serve a DWI-arrestee with notice of license revocation on the behalf of the Director for refusing to submit to a chemical test. Section 302.574.1; Davis, 416 S.W.3d at 829. However, "revocation is conditioned upon an officer making a statutorily sufficient request that a driver submit to chemical testing," Allison v. Dir. of Revenue, 525 S.W.3d 127, 130 (Mo. App. W.D. 2017) (quoting Mayfield, 100 S.W.3d at 850 ).

Here, an absolute prerequisite to any finding under Section 302.574.4 that Howe refused to submit to the blood test is a corresponding finding under Section 577,041.2 that Howe’s refusal must have been valid. Sections 302.574.4, 577.041.2; Allison, 525 S.W.3d at 130. Specifically, Howe’s refusal may be considered valid only if Trooper Hitt complied with Section 577.041.2 by informing Howe that her refusal to submit to the blood test would result in revocation of her driver’s license. Section 577.041.2; Allison, 525 S.W.3d at 130 ; Mayfield, 100 S.W.3d at 850 ; see also Mullin v. Director, 556 S.W.3d 626, 631 (Mo. App. W.D. 2018). The Director argues that Trooper Hitt’s reading of the AIR implied consent warning for the breath test satisfied Trooper Hitt’s statutory obligation, thereby negating any requirement that he repeat the implied consent warning to Howe. Given the specific facts of this case, we disagree.

It is well established that the implied consent warning is statutorily mandated for chemical refusal revocation. Allison. 525 S.W.3d at 130 ; Simon. 509 S.W.3d at 138 ; Mayfield, 100 S.W.3d at 850. Here, Trooper Hitt read aloud and manually completed the AIR implied consent warning with respect to the breath test: "To determine the alcohol or drug content of your blood, I am requesting you submit to a chemical test of your breath." Trooper Hitt...