Kidd v. Wilson

• Decision Date: 29 May 2001
• Citation: 50 S.W.3d 858
• Parties: (Mo.App. S.D. 2001) Audrey Kidd, Respondent, v. Quentin Wilson, Director of Revenue, Appellant. WD58308 0
• Court: Missouri Court of Appeals

50 S.W.3d 858 (Mo.App. S.D. 2001)

Audrey Kidd, Respondent, v. Quentin Wilson, Director of Revenue, Appellant.

WD58308

Missouri Court of Appeals Western District

05/29/2001

Appeal From: Circuit Court of Platte County, Hon. Gary D. Witt

Counsel for Appellant: Marvin L. Andersen

Counsel for Respondent: Abe Shafer, V

Opinion Summary: The Director of Revenue appeals from a judgment entered in the Circuit Court of Platte County reinstating the drivers' license of Audrey Kidd.

AFFIRMED.

Division I holds: (1) The Director of Revenue failed to comply with Rule 84.04 by setting forth the evidence in the light most favorable to her position and disregarding evidence that would support the judgment.

(2) The Director of Revenue did not "prove" all of the elements necessary for the revocation of Kidd's license where the record supported a finding that the arresting officer failed to properly advise her, in accordance with the prescribed Implied Consent Warnings, that her refusal to take a blood alcohol test could be used against her in a criminal prosecution.

(3) Any comments that the trial court made at the license revocation hearing were gratuitous, and this Court must affirm the trial court's decision if it was correct on any reasonable theory supported by substantial evidence.

Joseph M. Ellis, Judge

The Director of Revenue appeals from a judgment entered in the Circuit Court of Platte County reinstating the drivers' license of Audrey Kidd.

Our review of a trial court's decision regarding the administrative suspension of a driver's license is governed by Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). "We will affirm the trial court's decision unless it is not supported by substantial evidence, is against the weight of the evidence, or misstates or misapplies the law." Terry v. Dir. of Revenue, 14 S.W.3d 722, 724 (Mo. App. W.D. 2000). In reviewing the trial court's judgment, we view the evidence and all reasonable inferences drawn therefrom in the light most favorable to the judgment. Hansen v. Dir. of Revenue, 22 S.W.3d 770, 772 (Mo. App. E.D. 2000).

At the outset, we note that the Director's brief fails to fully comply with Rule 84.04. Rule 84.04(c) provides that the statement of facts "be a fair and concise statement of the facts relevant to the questions presented for determination without argument." "This requirement serves to define the scope of the controversy and afford the appellate court an immediate, accurate, complete and unbiased understanding of the facts of the case." Perkel v. Stringfellow, 19 S.W.3d 141, 146 (Mo. App. S.D. 2000). The Director's statement of facts sets forth the evidence in the light most favorable to her¹ position and completely disregards the evidence and testimony presented by Ms. Kidd at the hearing. "[A] statement of facts which emphasizes facts favorable to the appellant and omits facts essential to the respondent does not substantially comply with Rule 84.04(c)." In re Marriage of Spears, 995 S.W.2d 500, 502 (Mo. App. S.D. 1999). "Such a violation of Rule 84.04 constitutes grounds for the dismissal of [the] appeal, although we hesitate to dismiss an appeal for this reason alone." In re Marriage of Gerhard, 34 S.W.3d 305, 307 (Mo. App. W.D. 2001). For the latter reason, despite the violation of Rule 84.04(c), we will address the issues raised on appeal.

At approximately 1:50 a.m. on October 3, 1999, Missouri State Highway Trooper Michael Moats observed Audrey Kidd driving her pickup truck on Barry Road in Platte County, Missouri, without any operating headlights. After Trooper Moats stopped her, he asked Ms. Kidd to step out of her truck. Trooper Moats observed that she had bloodshot eyes and smelled of alcohol. He further noted that she swayed while she was standing still and that her speech was slurred.

Trooper Moats then conducted a horizontal gaze nystagmus test and the one-leg stand test on Ms. Kidd. After determining that Ms. Kidd failed both tests, Trooper Moats administered a portable breath test on Ms. Kidd. When Ms. Kidd asked Trooper Moats the results of that test, Trooper Moats told her that he did not have to reveal the results to her and that she would "never know" what they were.²

After administering these three tests, Trooper Moats placed Ms. Kidd under arrest, but did not inform her of her Miranda rights. Trooper Moats then transported Ms. Kidd to the Platte County Jail.

Upon arriving at the jail, Trooper Moats asked Ms. Kidd to submit to a blood alcohol test. He told her that her license would be suspended for a year if she refused to take the test. Ms. Kidd then asked Trooper Moats several questions about the breath test and what would happen if she refused to take it. After Trooper Moats answered her questions, at 2:15 a.m., she indicated that she did not want to take the test.

Subsequently, after Trooper Moats began doing some paperwork related to her arrest, Ms. Kidd stated that she had changed her mind and would take the test. However, after Trooper Moats set up the equipment, she again refused to take the test.

Thereafter, at 2:30 a.m., Trooper Moats informed Ms. Kidd of her Miranda rights. He then served her with a notice of license revocation and submitted his report to the Director of Revenue.

On October 13, 1999, Ms. Kidd filed a petition for review in the Circuit Court of Platte County. The circuit court conducted a hearing on the matter on January 20, 2000. On January 24, 2000, the trial court entered its judgment. The judgment stated:

Evidence was heard and the Court finds that the Petition for Review and Application to Set Aside Revocation Of Driver's License for Refusal to Submit to a Chemical Test filed by Petitioner, Audrey L. Kidd, should be sustained.

WHEREFORE, IT IS ORDERED, ADJUDGED AND DECREED that the revocation of the driving privilege of Petitioner, Audrey L. Kidd . . . is hereby set aside and Petitioner is authorized to operate a motor vehicle.

The Director brings two points on appeal. In her first point, the Director contends that the trial court erred in reinstating Ms. Kidd's license because she had "proven" all of the elements necessary to support the revocation of a driver's license.

"To uphold the revocation of a driver's license for refusal to submit to a chemical test, the trial court shall determine only the following: 1) whether the driver was arrested; 2) whether the arresting officer had reasonable grounds to believe the driver was driving while intoxicated; and 3) whether the driver refused to submit to the test." Brown v. Dir. of Revenue, 34 S.W.3d 166, 169 (Mo. App. W.D. 2000) (citing McMaster v. Lohman, 941 S.W.2d 813, 815 (Mo. App. W.D. 1997)). "The Director of Revenue has the burden of proof, and failure to satisfy the burden will result in the reinstatement of the driver's license." Id. (citing McMaster, 941 S.W.2d at 815-16). If the trial court determines that one or more of the necessary criteria has not been met, the court is required to order the reinstatement of driving privileges. Berry v. Dir. of Revenue, 885 S.W.2d 326, 328 (Mo. banc 1994).

The Director claims to have satisfied all of the necessary elements to support the revocation of Ms. Kidd's driver's license. In support of her argument, the Director points out evidence that would have supported findings in her favor on each of these elements.

In making this argument, the Director fails to recognize our standard of review. The Director argues the evidence in the light most favorable to her position and completely ignores the contrary evidence presented by Ms. Kidd at the hearing.

"On appeal, the judgment of the trial 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. of Revenue, 3 S.W.3d 897, 899 (Mo. App. S.D. 1999). "The trial court is afforded wide discretion even if there is evidence in the record which would support a different result." Buckley v. Dir. of Revenue, 4 S.W.3d 152, 154 (Mo. App. E.D. 1999). "[A]ll fact issues are deemed to have been found in accordance with the result reached." Berry, 885 S.W.2d at 328. Under our standard of review, we must view the evidence and all reasonable inferences in the light most favorable to the trial court's judgment, "even if there is evidence that would support a different result." Rhodes v. Dir. of Revenue, 994 S.W.2d 597, 600 (Mo. App. S.D. 1999). Indeed, we must disregard all contrary evidence and permissible inferences that could have been drawn therefrom. M.F.M v. J.O.M, 889 S.W.2d 944, 957 (Mo. App. W.D. 1995).

Ms. Kidd did not dispute that she was arrested and that the trooper had reasonable grounds to believe she had been driving while intoxicated. However, she did present substantial evidence to support a finding that she was not informed of the consequences of refusing to take the test and, therefore, was unable to make an informed decision whether to take the test.

"Section 577.041.1 provides that an officer's request to submit to a breathalyzer test 'shall include the reasons of the officer for requesting the person to submit to a test and also shall inform the person that evidence of his refusal to take the test may be used against him and that his license shall be immediately revoked upon his refusal to take the test.'" Buckley, 4 S.W.3d at 153 (quoting Section 577.041.1). "These warnings have been called the 'Implied Consent Law' or 'Implied Consent Warning.'" Buckley, 4 S.W.3d at 153. "The Implied Consent Law mandates that the arrestee be advised of his rights and the consequences of waiving those rights." Brown, 34 S.W.3d at 171. "'The purpose of the warning provided in section 577.041.1 is to inform an apparently inebriated driver of the consequences that follow a refusal to consent to a chemical test to determine...