Lorton v. Director of Revenue, WD

• Decision Date: 23 February 1999
• Docket Number: No. WD,WD
• Citation: 985 S.W.2d 437
• Parties: Devin D. LORTON, Respondent, v. DIRECTOR OF REVENUE, Appellant. 55050.
• Court: Missouri Court of Appeals

Page 437

985 S.W.2d 437

Devin D. LORTON, Respondent, v. DIRECTOR OF REVENUE, Appellant.

No. WD 55050.

Missouri Court of Appeals,

Western District.

Feb. 23, 1999.

Paul R. Jackson, Kirksville, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Evan J. Buchheim, Asst. Atty. Gen., Jefferson City, for respondent.

Before BRECKENRIDGE, C.J., HANNA and LAURA DENVIR STITH, JJ.

BRECKENRIDGE, Chief Judge.

The Director of Revenue appeals the ruling of the trial court setting aside the revocation of Devin Lorton's driving privileges. The Department of Revenue argues that the trial court erred in finding that Mr. Lorton did not refuse the breath test within the meaning of § 475.041.1, RSMo Supp.1997, ¹ and that its ruling was against the weight of the evidence. We find that Mr. Lorton refused the breath test, so we reverse the trial court's judgment and remand the cause for entry of a judgment denying Mr. Lorton's petition for review.

Facts and Procedural History

The facts in this case are not in dispute. On March 13, 1997, at approximately 6:20 a.m., Officers Jeff Brown and Steve Olinger of the Macon Police Department stopped and arrested Devin Lorton for driving with a revoked license. During the arrest, the officers noticed that Mr. Lorton swayed as he walked and smelled moderately of alcohol. When the officers arrived at the police station, they administered field sobriety tests to determine whether Mr. Lorton was intoxicated. After administering the one-legged-stand test, the walk-and-turn test and the horizontal gaze nystagmus test, Officer Olinger determined that Mr. Lorton was intoxicated and, at 6:39 a.m., advised him that he was under arrest for driving while intoxicated. At 6:41 a.m., Officer Olinger read Mr. Lorton his Miranda rights. ²

Officer Olinger testified that his usual practice is to advise the detainee that following some paper work, he or she would be asked to submit to a "chemical test of their breath" to determine whether he or she is intoxicated. The officer did not specifically recall advising Mr. Lorton of the breath test, although he had no reason to believe he varied from his normal procedure. Following the Miranda warnings, Mr. Lorton immediately requested an attorney, at which time the officer "scooted" the phone away from the wall towards Mr. Lorton, explained how to reach an outside line and made the phone book available to him. Officer Olinger advised Mr. Lorton at that time that he had twenty minutes in which to contact an attorney. During the next twenty minutes, Mr. Lorton made several unsuccessful attempts to contact his attorney. At 7:02 a.m., Officer Olinger repeated the Miranda warnings to Mr. Lorton and began to interview Mr. Lorton for the alcohol influence report. Although Mr. Lorton answered a few of the questions, he stopped and advised Officer Olinger that he did not want to do anything else until he had contacted an attorney. He again made an attempt to contact his attorney, but his attempt was unsuccessful. Officer Olinger recommended that Mr. Lorton try to contact a different attorney if his was unavailable, but Mr. Lorton advised him that, "He didn't know any twenty-four hour attorneys."

At approximately 7:08 a.m., Officer Olinger read the Implied Consent Law to Mr. Lorton directly from the alcohol influence report form. Mr. Lorton responded by indicating that he would not do anything until he had contacted his attorney. Officer Olinger informed Mr. Lorton that he had already been given the required time in which to contact an attorney. Officer Olinger testified that after 7:08 a.m., Mr. Lorton never asked to use the phone and he made no attempt to use the phone, which was available in the room. Officer Olinger proceeded to prepare the blood alcohol content verifier for the breath test and, at approximately 7:16 a.m., requested that Mr. Lorton step up to the machine. Officer Olinger inquired whether Mr. Lorton wanted to give a breath sample and informed him that if he did not give a breath sample, he would be issued a summons for "breathalyzer refusal." Mr. Lorton did not blow into the breath test machine and again stated that he would not do anything until he spoke with an attorney. Officer Olinger then issued Mr. Lorton a citation for driving while intoxicated, driving while revoked ³ and breath test refusal.

The Director of Revenue revoked Mr. Lorton's driving privileges for refusing the breath test under § 577.041.3, ⁴ and Mr. Lorton filed a petition for review in the Circuit Court of Macon County, Missouri. At trial, the State presented evidence, but Mr. Lorton indicated that he had no evidence to present. On September 15, 1997, the trial court entered a judgment enjoining the Director of Revenue from revoking Mr. Lorton's license, based upon its finding that Mr. Lorton did not refuse the test. The Director of Revenue appealed, arguing that the trial court erroneously applied § 577.041.1 to the facts of this case and that its ruling was against the weight of the evidence.

Standard of Review

On review, the trial court's ruling must be upheld unless it is unsupported by substantial evidence, it is against the weight of the evidence, or it misstates or misapplies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); Borgen v. Director of Revenue, 877 S.W.2d 172, 174 (Mo.App.1994). When reviewing the revocation of a driver's license for refusal to submit to the breath test, the trial court must determine (1) whether the person was arrested, (2) whether the arresting officer had reasonable grounds to believe that the person was driving while intoxicated, and (3) whether the person refused to submit to the test. Section 577.041.4; McMaster v. Lohman, 941 S.W.2d 813, 815 (Mo.App.1997). "The Director of Revenue has the burden of proof and failure to satisfy the burden will result in the reinstatement of the license to drive a motor vehicle." McMaster, 941 S.W.2d at 815-16. In this case, the only issue presented is whether Mr. Lorton refused to submit to the breath test.

Requirements of the Implied Consent Law Not Satisfied

The uncontroverted evidence shows that Mr. Lorton did not submit to the breath test. A driver's license may be revoked for refusing to submit to a chemical test, but the revocation is conditioned upon the arresting officer making a "statutorily sufficient 'request' " that the driver take the test. McMaster, 941 S.W.2d at 816. A statutorily sufficient request is one which complies with the requirements of § 577.041.1, the Implied Consent Law. Id. Section 577.041.1 states, in part:

The request of the arresting officer 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. If a person when requested to submit to any test allowed under section 577.020 requests to speak to an attorney, he shall be granted twenty minutes in which to attempt to contact an attorney. If upon completion of the twenty-minute period the person continues to refuse to submit to any test, it shall be deemed a refusal.

* * *

The language requiring a twenty-minute period to contact an attorney was added to the statute in 1991. Prior to 1991, a detainee was entitled to a "reasonable opportunity" to contact an attorney. See Albrecht v. Director of Revenue, 833 S.W.2d 40, 42 (Mo.App.1992). The twenty-minute provision has been interpreted as a legislative definition of "reasonable opportunity." See Wall v. Holman, 902 S.W.2d 329, 331 (Mo.App.1995). "Where a motorist requests and is denied a reasonable opportunity to contact an attorney before deciding whether to submit to a breathalyzer test, refusal is not unequivocal and license revocation cannot be upheld." Id.

The case in which this court recently held that the twenty-minute waiting period required by § 577.041.1 was not triggered until a person receives a statutorily sufficient recitation of the Implied Consent Law was McMaster v. Lohman, 941 S.W.2d 813. In McMaster, as the police officer was transporting Mr. McMaster to the police station, he recited "unspecified excerpts of the Implied Consent Law" to Mr. McMaster, who was under arrest for driving while intoxicated. Id. at 815. At the police station, the officer read Mr. McMaster the Implied Consent Law at 5:48 a.m. Id. As the officer was attempting to read him the Miranda warning, Mr. McMaster interrupted to solicit legal advice from the officer and to request to speak to an attorney. Id. "The officer responded that he could not provide legal advice and that Mr. McMaster would have an opportunity to contact an attorney immediately after the officer had advised him of his rights." Id. The police officer noted in his report that Mr. McMaster was advised of his Miranda rights at 5:49 a.m. Id. Thereafter, Mr. McMaster was allowed to use a phone to contact an attorney, but was unsuccessful. Id. While Mr. McMaster was attempting to call an attorney, and without further conversation with Mr. McMaster, the police officer made a report at 5:50 a.m. that Mr. McMaster refused the breath test. Id.

Reversing the trial court's revocation of the driver's license, the court stated, "[Section] 577.041.1's twenty-minute waiting period begins running immediately after the officer has informed the driver of the Implied Consent Law." Id. at 817. The court explained:

Section 577.041 establishes a required and deliberate sequence of events--a request to submit to chemical testing that informs the driver of: (1) the officer's reasons for requesting the test; and provides (2) that evidence of a refusal to take the test may be used adversely against the driver; and (3) that the driver's license shall be immediately revoked upon a refusal to take the test. Until the three requirements of section 577.041 are first met, the section 577.041 twenty-minute waiting period...