Hurt v. Director of Revenue, State
| Decision Date | 07 May 2009 |
| Docket Number | No. SD 28988.,SD 28988. |
| Citation | 291 S.W.3d 251 |
| Parties | Jerry Wayne HURT, Petitioner-Respondent, v. DIRECTOR OF REVENUE, STATE of Missouri, Respondent-Appellant. |
| Court | Missouri Court of Appeals |
Jeremiah W. (Jay) Nixon, Atty. Gen., James A. Chenault, III, Asst. Atty. Gen., Jefferson City, MO, for Appellant.
John D. Berger, Rolla, MO, for Respondent.
The Director of Revenue (the Director) appeals from a judgment setting aside the administrative suspension of the driving privileges of Jerry Hurt (Hurt) after a trial de novo in circuit court. The Director contends, inter alia, that the trial court erred by finding the results of Hurt's breathalyzer test invalid due to the presence of chewing tobacco in his mouth throughout the 15-minute observation period preceding the test. Because that contention has no merit and the issue is dispositive of the entire appeal, the judgment reinstating Hurt's driving privileges is affirmed.
The Department of Revenue is authorized to suspend the driver's license of any person "arrested upon probable cause to believe such person was driving a motor vehicle while the alcohol concentration in the person's blood, breath, or urine was eight-hundredths of one percent or more by weight ...." § 302.505.1.1 After an adverse decision from the Department of Revenue, a driver may file a petition for a trial de novo in circuit court. § 302.535.1; Hlavacek v. Director of Revenue, 129 S.W.3d 374, 377 (Mo.App.2003). Lawson v. Director of Revenue, 145 S.W.3d 443 (Mo.App.2004), explains the obligations imposed upon the Director and the driver at such a trial:
In order to make a prima facie case for license suspension, the Director is required to show two elements by a preponderance of the evidence. First, the Director must establish that the person was arrested upon probable cause. Second, the Director must show that the person had a blood alcohol concentration of .080 percent at the time of the arrest.... The Director has the burden to present a prima facie case. If that threshold is met, the driver is entitled to present evidence in an attempt to rebut the Director's prima facie case. While the burden of production shifts to the driver when the Director establishes a prima facie case, the burden of persuasion remains with the Director throughout the proceedings.
Id. at 445-46 (citations omitted).
This Court reviews the trial court's judgment after a trial de novo pursuant to the familiar standards established by Rule 84.13(d) and Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Ruth v. Director of Revenue, 143 S.W.3d 741, 744 (Mo.App.2004).2 The judgment will be affirmed unless there is no substantial evidence to support it, the decision is contrary to the weight of the evidence, or the trial court erroneously declared or applied the law. Verdoorn v. Director of Revenue, 119 S.W.3d 543, 545 (Mo. banc 2003). In determining whether the trial court's judgment is supported by the evidence or is against the weight of the evidence, we defer to the trial court's credibility determinations. See Hinnah v. Director of Revenue, 77 S.W.3d 616, 620 (Mo. banc 2002).
The record reveals that Hurt's driver's license was suspended by the Department of Revenue after an administrative hearing in May 2007. Thereafter, Hurt timely filed a request for a trial de novo in circuit court. The trial was held in January 2008.
The Director's evidence consisted of Exhibit A, which was a certified copy of the Director's records concerning Hurt, and testimony from Salem city policemen John Chase (Officer Chase) and Randall Brooks (Corporal Brooks). The following is a summary of that evidence.
At 1:12 a.m. on January 3, 2007, Officer Chase was on patrol when he was approached by a BMW with its headlights on high beam. The vehicle was traveling 12 miles over the posted speed limit. Officer Chase turned around and pursued the vehicle. As he approached, he observed the wheels on the BMW's left side cross over the center yellow line into the oncoming lane of traffic. He activated his emergency lights and stopped the car. Corporal Brooks arrived at the scene shortly thereafter.
Hurt was alone inside the car. When he was asked for his license and insurance card, he handed his entire wallet out the window. After Officer Chase explained that he could not accept the wallet, Hurt was able to produce his driver's license. His eyes were glassy, and he had a moderate odor of alcohol about his person. He admitted that he had consumed a few drinks at the Eagle's Club.
Officer Chase administered three field sobriety tests: horizontal gaze nystagmus; the one-leg stand; and the walk-and-turn. Hurt failed all three. He was arrested for driving while intoxicated and transported to the police station by Corporal Brooks. Once there, Officer Chase prepared an alcohol influence report (AIR). Hurt was asked if he was wearing false teeth, and he said no. He agreed to have his blood alcohol tested using a Data Master machine. Officer Chase observed Hurt during the entire 15-minute observation period and testified that Officer Chase chewed tobacco himself, and he could "most normally" tell when someone was chewing tobacco. However, he admitted that he did not ask Hurt whether he had anything in his mouth during the observation period.
Corporal Brooks also was present during the 15-minute observation period. He had seen people chewing tobacco and "sometimes" could tell if they were doing so. He did not see Hurt place anything into his mouth or see anything come out of his mouth during that time frame. However, Corporal Brooks did not ask Hurt whether he had anything in his mouth. Corporal Brooks administered the blood alcohol test, which showed that Hurt had a blood alcohol content of .121%.
To rebut the Director's case, Hurt presented testimony from himself and Dent County Deputy Sheriff Matt Pappert (Deputy Pappert). Their testimony is summarized below.
Hurt testified that he had been at the Eagles Club for a couple of hours before the traffic stop. While there, he had consumed two or three drinks. He left between 12:30 and 1:00 a.m. He had chewed tobacco since he was 19 years old. As soon as he left the club, he placed some chewing tobacco in his mouth. The Eagles Club was only two miles out of Salem, so Hurt was stopped within three to five minutes after he left. Neither Officer Chase nor Corporal Brooks: (1) asked Hurt whether he had anything in his mouth; (2) checked to see whether he had anything in his mouth; or (3) asked him to remove anything from his mouth. The chewing tobacco was still in his mouth when he took the blood alcohol test. Hurt had chewing tobacco in his mouth while he was testifying at the trial de novo. He also removed a can of tobacco from his pants pocket and demonstrated how much tobacco he would typically place in his mouth between his cheek and gum.
Deputy Pappert testified that he was with Hurt at the Eagles Club until he left in the early morning hours of January 3. The pair had been sitting together at the same table for several hours. During that time, Hurt had two or three drinks. As a road officer, Deputy Pappert had stopped people for driving while intoxicated, and he knew how to administer field sobriety tests. Based on the deputy's observations of Hurt's speech and actions throughout the evening, he did not seem to be impaired or unsafe to operate a vehicle when he got ready to leave. If he had been, Deputy Pappert would have offered Hurt a ride home or a place to stay. Deputy Pappert also confirmed that Hurt generally put tobacco in his mouth on his way out the door of the Eagles Club.
The trial court entered a judgment reinstating Hurt's driving privileges. The court found the breathalyzer test results unreliable because neither Officer Chase nor Corporal Brooks noticed that Hurt had chewing tobacco in his mouth, and this substance remained there throughout the 15-minute observation period.3 The court cited Coyle v. Director of Revenue, 181 S.W.3d 62 (Mo. banc 2006), in support of its decision. This appeal followed. The Director has raised four points of alleged error. For ease of analysis, they will be addressed in reverse order.
To establish a prima facie case for suspension of Hurt's driving privileges for driving while intoxicated, the Director had to present evidence showing that: (1) there was probable cause for the arrest; and (2) Hurt's blood alcohol level exceeded the legal limit. Vanderpool v. Director of Revenue, 226 S.W.3d 108, 109 (Mo. banc 2007). Once the Director made a prima facie case, Hurt was entitled to present rebuttal evidence that raised a genuine issue of fact regarding the validity of the blood alcohol test results. Coyle, 181 S.W.3d at 65. He did so by presenting evidence that he had chewing tobacco in his mouth throughout the 15-minute observation. The trial court believed this testimony, and this Court defers to that credibility determination. See Hinnah v. Director of Revenue, 77 S.W.3d 616, 620 (Mo. banc 2002). The trial court concluded that the presence of the chewing tobacco in Hurt's mouth invalidated the blood alcohol test results.
The Director's fourth point asserts this ruling was erroneous because Hurt failed to properly rebut the presumption that his blood alcohol test results were valid. According to the Director, Hurt's evidence was insufficient because: (1) he already had the tobacco in his mouth before the observation period began; and (2) he presented no independent evidence that the presence of tobacco affected the validity of the blood alcohol test. For the following reasons, that argument lacks merit.
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