Kienzle v. Director of Revenue, State of Mo.
| Citation | 944 S.W.2d 326 |
| Decision Date | 01 May 1997 |
| Docket Number | No. 21268,21268 |
| Parties | Angela KIENZLE, Petitioner-Respondent, v. DIRECTOR OF REVENUE, STATE OF MISSOURI, Respondent-Appellant. |
| Court | Court of Appeal of Missouri (US) |
Jeremiah W. (Jay) Nixon, Attorney General, Julia Hosmer, Special Assistant Attorney General, Mo. Dept. of Revenue, Jefferson City, for appellant.
Cobb Young, Joplin, for respondent.
The Director of Revenue (Director) appeals the decision of the trial court reinstating the driving privileges of Angela Kienzle (Respondent) after an administrative suspension of her privileges pursuant to § 302.505. 1
The judgment of the trial court will be affirmed unless there is no substantial evidence to support it, unless it is against the weight of the evidence, or unless the trial court erroneously declares or applies the law. Sherrod v. Director of Revenue, 937 S.W.2d 751, 752 (Mo.App.1997).
At the trial de novo, Corporal Michael Hobson was called as a witness. He testified that on November 23, 1995, at 3:27 A.M., he observed Respondent's vehicle weaving within its lane of traffic. He followed the vehicle and noticed that the left taillight was broken. He testified that "I stopped her for the taillight; but the weaving in the lane, I felt that she possibly could have been drinking." Corporal Hobson then stopped the car. Respondent pulled over on the left side of a one-way street. He asked Respondent for her license, and she replied that she needed to exit the car as her license was in the backseat. Corporal Hobson testified that when Respondent exited the vehicle she shut the car [door] behind her and as she turned to go to the back door to get into the vehicle, she fell back against the vehicle. It was at this time that Corporal Hobson smelled the odor of intoxicants. Corporal Hobson also testified that Respondent freely admitted that she had been drinking vodka that evening and that he had smelled the odor of intoxicants, although the officer also acknowledged that vodka did not have any smell to it.
Respondent testified that she had two mixed drinks with vodka that evening. She further testified that she fell against the vehicle because when she "stepped ... onto the curb and it kind of threw [her] balance...." She also testified that her right taillight had about 10% to 15% of the red cover missing and that the white light was shining through the back.
Corporal Hobson had Respondent perform three different field sobriety tests, all of which she failed. At that time she was placed under arrest for driving while intoxicated. At the police station, Corporal Hobson noted in his report that her speech was slurred.
A suspension of driving privileges pursuant to § 302.505 requires a two-part showing: (1) that the driver was arrested upon probable cause that he or she was driving in violation of an alcohol related offense; and (2) that the driver had been driving at a time when his or her blood alcohol concentration was at least .10% by weight. Brandom v. Director of Revenue, 931 S.W.2d 510, 511 (Mo.App.1996). At issue in this appeal is the first of these two requirements, for it is uncontested that Respondent's blood alcohol concentration was 0.12%, in excess of the statutory requirements for suspending or revoking her license to operate an automobile.
The probable cause required to suspend or revoke an operator's license is the type of probable cause necessary to effectuate an arrest for the alcohol related violation. Cook v. Director of Revenue, 890 S.W.2d 738, 739 (Mo.App.1995). "[P]robable cause exists when the officer observes a traffic violation or unusual operation of a vehicle and, upon stopping the motorist, notes indications of alcohol consumption." Renfro v. Director of Revenue, 927 S.W.2d 945, 947 (Mo.App.1996); Johnson, 920 S.W.2d at 131. Probable cause exists when the facts and circumstances would warrant a person of reasonable caution to believe that an alcohol related offense has been or is being committed. Johnson, 920 S.W.2d at 132. This determination must be made in relation to the circumstances as they would have appeared to a prudent, cautious and trained police officer. Id.
Respondent asserts that in addition to demonstrating that there was probable cause to believe that Respondent was driving while intoxicated, the Director must also prove that probable cause existed for the initial traffic stop. However, this Court has stated that "[s]uch proof [is] not necessary since [the Director] does not have a burden of showing the lawfulness of or probable cause for a stop in order to...
To continue reading
Request your trial
-
Reed v. Director of Revenue, No. 26517 (MO 7/15/2005)
...not apply in a civil proceeding. Tidwell v. Director of Revenue, 931 S.W.2d 488, 491-92 (Mo. App. 1996); see Kienzle v. Director of Revenue, 944 S.W.2d 326, 328 (Mo. App. 1997); Sullins, 893 S.W.2d at In a decision entirely consistent with the above-cited authorities, our Supreme Court held......
-
Reed v. Director of Revenue, No. 26517 (MO 8/3/2005)
...not apply in a civil proceeding. Tidwell v. Director of Revenue, 931 S.W.2d 488, 491-92 (Mo. App. 1996); see Kienzle v. Director of Revenue, 944 S.W.2d 326, 328 (Mo. App. 1997); Sullins, 893 S.W.2d at In a decision entirely consistent with the above-cited authorities, our Supreme Court held......
-
Furne v. Director of Revenue
...988 S.W.2d 127, 130-31 (Mo.App. S.D.1999); Holley v. Lohman, 977 S.W.2d 310, 311-12 (Mo.App. S.D. 1998); Kienzle v. Director of Revenue, 944 S.W.2d 326, 328 (Mo.App. S.D.1997); Pool v. Lohman, 936 S.W.2d 195, 196-97 (Mo. App. S.D.1996); Fischer v. Director of Revenue, 928 S.W.2d 424, 425-26......
-
Mayberry v. Director of Revenue, 22354
...(arrestee admitted driving and offered no evidence at trial); Rogers, 947 S.W.2d 475 (defendant admitted driving); Kienzle v. Director, 944 S.W.2d 326 (Mo.App.1997) (arresting officer saw defendant driving); Kramer v. Director, 924 S.W.2d 308 (Mo.App.1996) (officer found arrestee alone in h......