James v. Director of Revenue
| Citation | 767 S.W.2d 604 |
| Decision Date | 30 March 1989 |
| Docket Number | No. 15945,15945 |
| Parties | Frederick Emmet JAMES, Jr., Appellant, v. DIRECTOR OF REVENUE, State of Missouri, Respondent. |
| Court | Court of Appeal of Missouri (US) |
Gene Wayne Redding, Elmer J. Meyer & Associates, Branson, for appellant.
William L. Webster, Atty. Gen., Jatha B. Sadowski, Sp. Asst. Atty. Gen., Jefferson City, for respondent.
Frederick Emmet James, Jr. ("James") appeals from a judgment affirming the suspension of his driver's license by the Director of Revenue ("the Director"). James maintains the circuit court erred in (1) reviewing the decision of an administrative hearing officer instead of entering judgment based on evidence presented to the circuit court, and (2) basing the judgment on the results of a "breath test" obtained by coercion and in violation of James' right to consult counsel.
The saga began at 11:37 p.m., January 2, 1988, when a police officer stopped a motor vehicle being driven by James after seeing the vehicle "disobey a red signal." The officer detected "an odor of intoxicants" inside James' vehicle and observed James' eyes "were watery and bloodshot." Asked by the officer whether he had drunk anything, James, according to the officer, replied, "[T]hree beers and two shots of something." The officer administered James "a series of field sobriety tests" and, after observing James' performance, arrested him for driving while intoxicated. James was taken to the police station where the officer administered James a "breath analysis" by means of a "blood alcohol content verifier." The evidence presented to the circuit court regarding that episode will be recounted momentarily. The test showed James had a ".145 percent blood alcohol content."
Acting pursuant to §§ 302.505 1 and 302.520, 2 the officer took possession of James' driver's license and served notice on him that it had been suspended.
A subsequent administrative hearing pursuant to § 302.530 3 resulted in a decision sustaining the suspension of James' license.
James thereupon filed a petition for trial de novo in the circuit court per § 302.535. 4 The circuit court conducted a trial at which two witnesses testified: the arresting officer and James.
The officer, after narrating the circumstances of the arrest, was asked about the "breath analysis." The officer testified he (a) informed James of the "Miranda rights," 5 (b) asked James to submit to the breath analysis, (c) told James he had the right to refuse, and (d) warned James that if he did refuse his license may be revoked for a year.
On cross-examination by James' lawyer the officer testified that prior to undergoing the breath analysis James "repeatedly asked to take a blood test," and on one occasion said he wanted to speak to his attorney. The officer recounted he told James an arresting officer has the option of determining which type of test shall be given, and that he (the officer) had decided to give the breath test. Asked whether he advised James he would not administer a blood test, the officer answered, "That's correct."
The officer recalled James saying he would not undergo the breath analysis without talking to his attorney. When James asked to call his attorney the officer, so he testified, said, "Fine," and turned toward a door. At that point, according to the officer, James said, "Now, I'll take the test." It was promptly administered. The officer conceded that although there were telephones in a nearby room he never took James to them.
James testified he initially told the officer he (James) refused "to take the breathalyzer," that he wanted to take a blood test, and that he wanted to call his attorney. Asked how the officer reacted to the latter request, James testified the officer backed out of the room. After several seconds elapsed James (so he testified) figured the officer was leaving so he (James) said he would take the test. James added that at a "hearing" in a municipal court the officer had testified he did not know why James was not given an opportunity to use the telephone. James also recalled the officer testifying in municipal court that his purpose in stepping out of the room was to see if the phones were available because, if they were unavailable, James would have been unable to use one.
James objected in the circuit court to the receipt in evidence of the results of the breath analysis arguing, inter alia, that the results were obtained in violation of his right to consult counsel conferred by § 544.170 6 and his right to refuse to submit to the test conferred by § 577.041.1, RSMo Supp.1987. 7 The circuit court stated the question of admissibility would be taken with the case, with the ruling to be withheld "until after the evidence in its entirety." At the conclusion of the trial the parties were given time to file written suggestions on the admissibility issue.
The circuit court ultimately sent a letter to the lawyers for the Director and James, respectively. The letter said, in pertinent part:
"This is a civil case, not a criminal case. I believe the exclusionary rule regarding the exclusion of testimony or other evidence taken without the benefit of certain warnings or explanations applies only in criminal cases.
This kind of a case is purely civil, as I understand it. If the test is scientifically valid and there is sufficient basis for its admission, the circumstances under which [James] consented or didn't consent are immaterial.
I consider the breath test admissible and the determination of the Director is upheld...."
The circuit court's judgment provided, in pertinent part:
"It is ... ORDERED, ADJUDGED and DECREED that the decision of the ... Director ... to suspend or revoke [James'] driving privileges in the State of Missouri pursuant to RSMo. 302.500-540 (Supp.1984), is hereby affirmed...."
James' motion for new trial was denied. This appeal followed. James' first point is:
"The trial court erred in his judgment by upholding and affirming the decision of the Director ... to suspend or revoke Mr. James' driving priviledges [sic] because the trial court passed upon and reviewed the Administrative Hearing Officer's decision, instead of entering a judgment based on the evidence presented at trial by making his own findings of fact and conclusions, and the trial judge therefore, failed to conduct a hearing de novo."
In support of the point James cites three cases, one of which is Dove v. Director of Revenue, 704 S.W.2d 713 (Mo.App.1986). There, as in the instant case, the Director suspended an arrestee's driver's license per § 302.505.1. The suspension was sustained on administrative review; the arrestee then petitioned the circuit court for trial de novo. That court found the administrative hearing practice was violative of the arrestee's constitutional rights of due process, and entered judgment remanding the case to the Director with directions for a new administrative hearing. On appeal by the Director the Western District of this Court held the circuit court erred in determining that the administrative hearing procedure was constitutionally defective. Id. at 715[4,5]. The Western District added that the circuit court's judgment demonstrated a misconception of its function in cases under § 302.535. The opinion explained:
"Section 302.535.1 expressly withholds from circuit judges the power to review the administrative decision made as to driver's license suspensions after hearings are conducted pursuant to § 302.530. The statute authorizes trial de novo, meaning a trial anew, Black's Law Dictionary (5th Ed.1979), and states in part: 'Such trial shall be conducted pursuant to the Missouri rules of civil procedure and not as an appeal of an administrative decision pursuant to Chapter 536, RSMo.' The trial de novo had under § 302.535 is an original proceeding and is an exercise of an original and not a review jurisdiction. Collins v. Director of Revenue, 691 S.W.2d 246 (Mo. banc 1985).
The trial judge erred in this case when he ordered the case remanded to the Department of Revenue, for whatever cause, because such order was beyond his jurisdiction in deciding a case of original jurisdiction." Dove, 704 S.W.2d at 715 and .
Another of the cases cited by James in support of his first point is Kenagy v. Director of Revenue, 719 S.W.2d 488 (Mo.App.1986), also a de novo proceeding under § 302.535.1. There the circuit court entered judgment reinstating an arrestee's suspended driver's license. The judgment stated, in part, that the order of the Department of Revenue was made without probable cause to show that the arrestee was operating the motor vehicle with an alcoholic concentration in his blood of .13 per cent or more by weight. The appellate court stated that by using such language the circuit court appeared to be passing upon or reviewing the administrative hearing officer's decision. Id. at 490. The opinion emphasized that the circuit court is to conduct a trial de novo under § 302.535, not a review of the administrative hearing officer's decision, and that the trial is an original proceeding, not merely a review. Id. Consequently, said the opinion, the circuit court should enter judgment based on the evidence presented to it during trial. Id.
In examining § 302.535 we see it does not specify any issues that a circuit court is to determine in the trial de novo. It is noteworthy, however, that the trial de novo is the next step for an aggrieved licensee after an adverse decision by an administrative hearing examiner. Section 302.530.4 8 provides that the sole issue at the administrative hearing shall be whether by a preponderance of the evidence the licensee was driving a vehicle under the circumstances set out in § 302.505. 9
In Collins v. Director of Revenue, 691 S.W.2d 246 (Mo. banc 1985), the third case cited by James in support of his first point, the Supreme Court of Missouri construed § 302.505.1, saying:
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