Knipp v. Director of Revenue, s. WD

• Decision Date: 10 November 1998
• Docket Number: Nos. WD,s. WD
• Citation: 984 S.W.2d 147
• Parties: Evan F. KNIPP, Respondent, v. DIRECTOR OF REVENUE, Appellant. 54628, WD 54673.
• Court: Missouri Court of Appeals

Page 147

984 S.W.2d 147

Evan F. KNIPP, Respondent, v. DIRECTOR OF REVENUE, Appellant.

Nos. WD 54628, WD 54673.

Missouri Court of Appeals,

Western District.

Nov. 10, 1998.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Dec. 22, 1998.

Application for Transfer Denied Feb. 23, 1999.

Peggy D. Richardson, Andereck, Evans, Milne, Peace & Baumhoer, Jefferson City, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Jefferson City, Bruce E. Hahn, Asst. Atty. Gen., Kansas City, for respondent.

Before ELLIS, P.J., and LOWENSTEIN and RIEDERER, JJ.

ELLIS, Judge.

The Director of Revenue appeals from a judgment in the Circuit Court of Boone County reinstating Evan Knipp's driving privileges after revocation for refusal to submit to a chemical blood test pursuant to § 577.041. ¹ Knipp cross-appeals, contesting two of the trial court's findings.

On January 25, 1997, Evan Knipp was involved in a one-vehicle accident on Route PP in Cooper County, Missouri. Trooper Steve Holder of the Missouri Highway Patrol responded to the scene at approximately 12:50 a.m. He observed a pickup truck on its roof straddling a ditch beside the roadway and Knipp trapped inside behind the steering wheel, with his arm pinned outside the truck between its roof and the ground. Trooper Holder observed twelve boxes scattered outside the vehicle, numerous empty beer cans, as well as some unopened cans of beer. The driver's side of the truck was crushed and the only access was through the passenger side door. When Holder asked Knipp what happened, Knipp responded that he didn't know, he guessed he just "lost it." The trooper smelled intoxicants on Knipp's breath, but was unable to make any further assessment of his condition given the arrival of rescue personnel.

Holder also interviewed Christopher Cotriss at the scene. Cotriss stated that the truck belonged to him but that he had been a passenger at the time of the accident and had climbed out the passenger side window. The trooper also noted the odor of intoxicants on Cotriss's breath.

Rescue personnel extricated Knipp from the truck and transported him to University Hospital in Columbia, Boone County, Missouri by helicopter. Holder left the scene shortly after the helicopter and drove to the hospital, arriving a few minutes before 2:30 a.m. While Knipp was being treated for a scalp wound, Holder interviewed him further. He noted that Knipp was alert and responsive, that his eyes were bloodshot and glassy, his speech was slurred, he was mumbling to himself, and there was an odor of intoxicants on his breath. Knipp failed a gaze nystagmus test. Holder asked Knipp how much he had to drink, and Knipp responded that he did not remember. When Holder asked Knipp if he had been driving the truck, Knipp responded, "I guess."

At approximately 2:30 a.m., Holder read Knipp the Miranda warnings, placed him under arrest for driving while intoxicated and read him the implied consent law. Knipp did not request to speak to an attorney. He initially agreed to a blood test, but seconds later, as Holder turned away, Knipp stated, "I'm not f---ing giving him sh--." Holder read Knipp the implied consent law again, and Knipp refused the test. The Director revoked Knipp's license based on his refusal, and he filed a petition for review in the Circuit Court of Boone County on February 6, 1997.

The case was first set for hearing on March 14, 1997. On that date, the Director, represented by the Boone County prosecuting attorney, orally requested a continuance in order to subpoena its one witness, Holder. A continuance was granted until April 28, 1997. Knipp filed a motion to reconsider the continuance on March 17, 1997, which was denied by the court. At the hearing on April 28, 1997, only Holder and Knipp testified, and a great deal of their testimony was in conflict. Knipp claimed that Cotriss was driving the truck, that the accident actually occurred at 11:15 p.m. on the 24th, that he noted by his watch that it was 2:00 a.m. when medical personnel took him from the scene, and that he refused the blood test because he had been told he lost a great deal of blood and he thought he should not give any more. He did not communicate his reasoning to Holder or medical personnel at the time.

Under the statute, the trial court was required to make three determinations. First, it must determine whether the person was arrested. Second, it must determine whether the arresting officer had reasonable grounds to believe that the person was driving a motor vehicle in an intoxicated condition. Finally, the court must find whether the person refused to submit to a chemical test. § 577.041.3. In its order of June 5, 1997, the trial court found: (1) that Knipp was lawfully arrested on January 25, 1997; (2) that the arresting officer had reasonable grounds to believe that Knipp was driving a motor vehicle while in an intoxicated condition; and (3) that Knipp did not refuse to submit to a chemical breath [sic] test. Given its third finding, the trial court ordered Knipp's driving privileges reinstated. The Director filed her appeal on July 15, 1997, and Knipp filed notice of cross-appeal on July 24, 1997, contesting the court's findings (1) and (2).

We view the evidence in the light most favorable to the judgment. Wofford v. Director of Revenue, 868 S.W.2d 142, 143 (Mo.App. E.D.1993). We will affirm the judgment of the trial court unless there is no substantial evidence to support it, the judgment is against the weight of the evidence, or the judgment erroneously declares the law. Hampton v. Director of Revenue, 890 S.W.2d 364, 366 (Mo.App. W.D.1994); Rule 73.01.

Pursuant to Supreme Court Rule 84.04(j), Knipp is deemed the appellant in this court since he was the plaintiff in the action below. Mo. R. Civ. P. 84.04(j). He brings three points of error on appeal. First, he contends the trial court erred when it granted Director's motion for continuance at the hearing of March 14, 1997. Second, Knipp asserts that the court's finding that he was lawfully arrested was erroneous because the arrest occurred more than one and one-half hours after the alleged violation. Finally, he argues that the finding was also in error because the arresting officer did not have probable cause to make the arrest. Director brings one point of error on cross-appeal, asserting that the trial court erred in setting aside Knipp's license revocation when if found that Knipp had not refused the chemical test.

Motion for Continuance

In his first point on appeal, Knipp asserts that the trial court erred in granting Director's oral motion for continuance. Knipp states that he did not consent to Director's oral application for continuance, and it was an abuse of discretion for the trial court to grant the continuance over Knipp's objection.

The grant or refusal of a continuance is a matter of broad judicial discretion. Commerce Bank of Mexico, N.A. v. Davidson, 667 S.W.2d 474, 476 (Mo.App. E.D.1984). In reviewing the trial court's ruling on a motion for continuance based on the absence of a witness, we give the trial court's decision every possible intendment in favor of the correctness of that ruling. Seabaugh v. Milde Farms Inc., 816 S.W.2d 202, 207 (Mo. banc 1991). We will not disturb the ruling absent a showing of abuse of discretion by arbitrary or capricious exercise. Commerce, 667 S.W.2d at 476. An abuse of discretion occurs when the court's ruling is "so arbitrary and unreasonable as to shock the sense of justice and indicate lack of careful consideration." Felton v. Hulser, 957 S.W.2d 394, 397 (Mo.App. W.D.1997) (quoting King v. Copp Trucking, Inc., 853 S.W.2d 304, 307 (Mo.App. W.D.1993)).

Knipp argues that the court's grant of Director's oral motion for continuance violates Rules 65.03 and 65.04. He contends that since Director's application was not in writing and opposing counsel did not consent to an oral application, the trial court erred in granting the motion.

The Director contends she requested the continuance in order to produce its sole witness, Trooper Holder. Knipp admits that if the court had denied the motion, the Director would have had no evidence to present, and claims he lost the opportunity of acquittal on the technicality. "In exercising [its] discretion, the court should direct its attention toward the goals of fundamental fairness and the avoidance of unfair advantage." Patton v. Patton, 973 S.W.2d 139, 150 (Mo.App.W.D.1998) (citation omitted). Knipp fails to show that he was actually prejudiced or that the Director was unfairly advantaged. We must conclude that the trial court weighed all appropriate factors and determined in the interest of fundamental fairness and to avoid unfair advantage, the Director should be granted a continuance to produce Trooper Holder. We fail to find an abuse of discretion in granting the motion for continuance.

Legality of the Arrest

In his second and third points, Knipp challenges the legality of his arrest. He claims the trial court erred when it found that he had been lawfully arrested, both because the arrest occurred more than one and one-half hours after the alleged offense, during which time he was not removed from the scene for medical treatment, and because the officer did not have probable cause for the arrest.

Knipp asserts that the trial court erroneously applied the law. Statutory construction is a question of law, and where the lower court rules on matters of law, it is not discretionary. State v. Ruch, 926 S.W.2d 937, 938 (Mo.App.W.D.1996) (citing State ex rel. Igoe v. Bradford, 611 S.W.2d 343, 350 (Mo.App. W.D.1980)). If the law is erroneously declared or applied, the judgment of the trial court is afforded no deference. Id. at 938.

Knipp contends that Christopher Cotriss arrived at his (Knipp's) home at approximately 11:00 p.m. on the evening of the 24th, and...