In re Barnes
| Decision Date | 10 September 2001 |
| Docket Number | No. 00-6105WM.,00-6105WM. |
| Citation | 266 BR 397 |
| Parties | In re G. Eric BARNES, Debtor. Victory Denise Boone, Appellant, v. G. Eric Barnes, Appellee. |
| Court | U.S. Bankruptcy Appellate Panel, Eighth Circuit |
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Ronald S. Weiss, David A. Kraft (on brief), Kansas City, MO, for appellant.
Jeff A. Burmeister, Independence, MO, for appellee.
Before SCOTT, DREHER and McDONALD1, Bankruptcy Judges.
Victory Denise Boone ("Plaintiff") appeals from the judgment of the bankruptcy court2 holding that the Plaintiff failed to establish that G. Eric Barnes ("Debtor") was intoxicated at the time of an accident with Plaintiff. For the following reasons, we affirm the bankruptcy court's judgment.
The Plaintiff and the Debtor were involved in a three car accident on Interstate 35 in North Kansas City, Missouri at approximately 3:00 A.M. on the morning of December 14, 1997. The Debtor arrived at the Beaumont Club at approximately midnight the morning of the accident. The Debtor stayed at the Beaumont Club for approximately two hours and testified that he consumed three twelve ounce beers during that time. The Debtor left the Beaumont Club around 2:15 A.M. to go to the Harrah's gaming boat. However, once he arrived at Harrah's, Debtor elected not to gamble because he had very little cash and returned home.
At approximately 3:00 A.M. on his way home from Harrah's, Debtor lost control of his vehicle on an entrance ramp to southbound Interstate 35. Debtor's vehicle slid across all lanes of southbound Interstate 35 and came to rest in the far left lane after colliding with the median. Before Debtor could restart his vehicle, Plaintiff, who was traveling southbound on Interstate 35, collided into his vehicle. Apparently, Plaintiff did not see Debtor's vehicle prior to the collision and therefore did not apply her brakes. A third vehicle collided with Debtor's vehicle immediately after the initial collision between Plaintiff and Debtor.
Debtor suffered facial lacerations and contusions as the result of the accident and Plaintiff sustained a severe leg injury. Both Plaintiff and Debtor were transported to hospitals for treatment of their respective injuries. A passenger in Plaintiff's vehicle, Samantha Walker, died at the scene of the accident.
The initial State Trooper on the scene of the accident, Corporal P.R. Davis, interviewed Debtor in the ambulance prior to the ambulance transporting Debtor to the hospital. Corporal Davis questioned Debtor as to whether he had been drinking and Debtor responded in the negative. Corporal Davis also reported that the only odor he could detect from Debtor was that of blood. The second State Trooper on the scene, Corporal M.W. Cross, asked Plaintiff if she had been drinking that night and Plaintiff admitted that she had consumed a couple of drinks during the course of the evening.
Debtor arrived at North Kansas City Hospital at approximately 4:00 A.M. The hospital's records indicate that Debtor was spontaneous, oriented and was able to obey commands. Also, the records indicate that hospital personnel did not detect alcohol on Debtor's breath.
The reporting State Trooper, D.S. Nace, arrived on the scene of the accident after both Plaintiff and Debtor had been transported to the hospital. Corporal Davis and Trooper Nace arrived at North Kansas City Hospital at approximately 6:00 A.M. to interview Debtor. Trooper Nace reported that he detected the odor of alcohol on Debtor's breath as he was interviewing him. Trooper Nace also stated that the Debtor seemed confused and dazed and that he was unable to recall the facts relating to the accident. Trooper Nace also questioned Debtor if he had been drinking prior to the accident and Debtor responded that he had a "few drinks on the boat".
Trooper Nace, believing that the Debtor may be intoxicated, decided to administer a field sobriety test to Debtor. However, because Trooper Nace was uncertain of the extent of Debtor's injuries, he determined that he could only administer the horizontal gaze nystagmus ("HGN") test. Although the HGN test is ideally administered with the subject standing directly in front of the person administering the test, Trooper Nace administered the HGN test with Debtor lying down because of his injuries. Trooper Nace testified that Debtor presented all six indications of intoxication in the HGN test.
Trooper Nace now believed that the Debtor was in fact impaired based on the smell of alcohol on Debtor's breath and the results of the HGN test. Trooper Nace placed Debtor under arrest for careless and imprudent driving and requested that Debtor submit to a blood alcohol test. Debtor complied with Trooper Nace's request and submitted to a blood alcohol test, which indicated that Debtor has a blood alcohol content ("BAC") of .05% by volume at 6:15 A.M.3
Trooper Nace filed a statement of probable cause seeking to charge the Debtor with involuntary vehicular manslaughter for the death of Ms. Walker on March 5, 1998, indicating that he believed that Debtor was intoxicated at the time of the accident. Based on Trooper Nace's statement, the prosecuting attorney of Clay County Missouri charged Debtor with involuntary vehicular manslaughter for the death of Ms. Walker. Debtor entered a plea arrangement with the prosecuting attorney whereby the Debtor agreed to plead guilty to careless and imprudent driving, a class A misdemeanor, in exchange for the prosecutor dismissing the felony involuntary vehicular manslaughter charge. The Circuit Court of Clay County, Missouri sentenced Debtor to one year imprisonment on February 4, 1999 based on the plea agreement.
Plaintiff filed a negligence action against the Debtor in the Circuit Court of Jackson County, Missouri on March 17, 1998, seeking to recover for the injuries she suffered in the accident. Debtor filed a petition for relief under Chapter 7 of the Bankruptcy Code on February 7, 2000. Plaintiff filed this adversary proceeding seeking a determination that any damages she may be awarded in her state court action are nondischargeable pursuant to 11 U.S.C. § 523(a)(9).
After a trial on Plaintiff's adversary complaint, the bankruptcy court entered judgment on September 20, 2000, in favor of the Debtor. The bankruptcy court determined that Plaintiff failed to meet her burden of proof in demonstrating that Debtor was intoxicated under Missouri law at the time of the accident. Plaintiff appeals from the bankruptcy court's judgment, contending that the bankruptcy court erred in finding that Plaintiff failed to meet her burden of proof and that the bankruptcy court applied the incorrect burden of proof. We affirm.
We will not set aside the bankruptcy court's findings of fact unless those findings are clearly erroneous. Fed. R. Bank. P. 8013. A finding is clearly erroneous if, although there is evidence to support it, after examining the entire record, the reviewing court is left with the definite and firm conviction that a mistake has been made. Anderson v. City of Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). When reviewing the record, we must also give due regard to the bankruptcy court's opportunity to judge the credibility of the witnesses. Fed. R. Bank. P. 8013. We will review the bankruptcy court's determination of questions of law de novo. Holliday v. Kline (In re Kline), 65 F.3d 749, 750 (8th Cir. 1995).
The bankruptcy court's finding that the Debtor was not legally intoxicated at the time of the accident is a question of fact that we review under the clearly erroneous standard. Jones v. Hager (In re Jones), 80 B.R. 974, 976 (W.D.Mo.1987). The question of whether the bankruptcy court applied the correct burden of proof is a question of law that we will review de novo. In re Ford, 194 B.R. 583, 588 (S.D.Ohio 1995).
Plaintiff first argues that the bankruptcy court's factual conclusion that the Debtor was not intoxicated under Missouri law at the time of the accident was clearly erroneous.
Section 523(a)(9) of the Bankruptcy Code prevents the discharge of any debt for personal injury caused by the Debtor's operation of a motor vehicle, if such operation was unlawful because of the Debtor's intoxication. 11 U.S.C. § 523(a)(9). When determining whether the debtor was unlawfully operating a vehicle while intoxicated for purposes of section 523(a)(9), the bankruptcy court must apply state substantive law. Whitson v. Middleton (In re Middleton), 898 F.2d 950, 952 (4th Cir.1990).
Under Missouri law, a person commits the crime of driving while intoxicated if he operates a motor vehicle while in an intoxicated condition. Mo.Rev.Stat. § 577.010.1. A BAC of .10% or more by weight in the person's blood stream is prima facie evidence of intoxication. Mo.Rev.Stat. § 577.037.1. If a BAC test result shows that the person's BAC is less than .10% by weight, then the court must dismiss the charge unless there is evidence that: (1) the BAC test is unreliable because of the passage of time between the operation of the vehicle and the administration of the test; or (2) there is substantial evidence of intoxication from physical observation of witnesses or an admission from the person. Mo.Rev.Stat. §§ 577.037.5(1) and 577.037.5.(3).
Here, the Debtor's BAC three hours after the accident was .05% by weight. Plaintiff argues that the bankruptcy court's finding that Debtor was not legally intoxicated is clearly erroneous for two reasons. First, Plaintiff contends that she produced uncontroverted expert evidence that the BAC test result was unreliable because of the lapse of three hours between the accident and the administration of the BAC test. Second, Plaintiff asserts that Trooper Nace's observation of the Debtor at the hospital, including the results of the HGN test,...
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