Keller v. Director of Revenue, State of Mo., 71038
| Decision Date | 17 June 1997 |
| Docket Number | No. 71038,71038 |
| Citation | 947 S.W.2d 478 |
| Parties | Todd Allen KELLER, Plaintiff/Respondent, v. DIRECTOR OF REVENUE, STATE OF MISSOURI, Defendant/Appellant. |
| Court | Missouri Court of Appeals |
Jeremiah W. (Jay) Nixon, Atty. Gen., James A. Chenault, III, Special Asst. Atty. Gen., Mo. Dept. of Revenue, Jefferson City, for defendant/appellant.
Mark S. Wasinger, Hannibal, for plaintiff/respondent.
Before GERALD M. SMITH, P.J., and GRIMM and DOWD, JJ.
The Director of Revenue (Director) appeals from the order of the Marion County Circuit Court reinstating the driving privileges of Todd Allen Keller (Driver). Director issued the revocation because of Driver's alleged refusal to submit to a chemical test. We reverse and remand.
On November 3, 1995, Driver filed a petition in the circuit court of Marion County stating that he was detained by a trooper from the Missouri State Highway Patrol and accused of driving while intoxicated. Driver also stated he had received notice from Director that his driving privileges were to be revoked because of his refusal to submit to a blood test requested by the trooper.
This petition goes on to allege: 1) that Driver was not properly arrested or adequately warned of the consequences of a refusal; 2) the trooper lacked reasonable grounds to suspect that Driver was operating a motor vehicle while intoxicated; and 3) Driver did not refuse the chemical test as he consented to the taking of his blood, provided that it was taken from his penis.
The court docket reflects that the matter was set for trial on March 4, 1996. It also states that on March 4 both sides were present by counsel and the cause was passed for further orders. A few days later, Driver submitted a memorandum in support of his petition. The court then reinstated Driver's privileges without comment.
Director's appeal alleges error in the reinstatement of Driver's privileges because, according to Director, Driver was adequately warned of the consequences of refusing a blood test and Driver's conditional consent amounted to a refusal. We do not reach these claims of error. Rather, we address Driver's attack on the sufficiency of the record on appeal.
The only substantive documents in the record are Driver's petition and supporting memorandum. There is no transcript of the proceedings before the court, no arrest report, no indication of what evidence was presented, and no record of stipulations made by the parties save those concerning Driver's conditional consent and the warning given to Driver by the trooper. 1 Driver contends that Director cannot show trial court error without a transcript of the proceedings or an indication of what evidence was presented. We agree.
When reviewing the revocation of a driver's license for a refusal to submit to a chemical test, the trial court...
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...court is presumed to be correct and shall be affirmed under any reasonable theory supported by the evidence." Keller v. Dir. of Revenue, 947 S.W.2d 478, 479 (Mo. App. E.D. 1997) (citing Berry, 885 S.W.2d at 328); Jarrell v. Dir. of Revenue, 41 S.W.3d 42 (Mo. App. E.D. 2001); Simmons v. Dir.......
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Steele-Danner v. Director of Revenue
...court is presumed to be correct and shall be affirmed under any reasonable theory supported by the evidence. Keller v. Director of Revenue, 947 S.W.2d 478, 479 (Mo.App. E.D.1997). A driver need only present evidence that is inconsistent with a "reasonable belief" that the driver was driving......
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Salas-Cox v. Director of Revenue
...the correct procedure is to reverse the judgment of the trial court and remand for a new trial." Id. (citing Keller v. Director of Revenue, 947 S.W.2d 478, 479 (Mo.App. E.D.1997); see also Henzlik v. Director of Revenue, 951 S.W.2d 760, 762 (Mo.App. S.D.1997); Wolansky v. Director of Revenu......
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Rosa v. Director of Revenue State of Mo., WD
...cannot review the cause based on the sparse record. Vogel v. Dir. of Revenue, 804 S.W.2d 432, 434--35 (Mo.App.1991); Keller v. Dir. of Revenue, 947 S.W.2d 478 (Mo.App.1997). Unless the parties can submit a statement as provided by Rule 81.13, this cause must be reheard by the circuit court.......