Lyons v. Director of Revenue
| Decision Date | 16 January 2001 |
| Parties | (Mo.App. E.D. 2001) Michael A. Lyons, Respondent, v. Director of Revenue, Appellant. ED77714 0 |
| Court | Missouri Court of Appeals |
Appeal From: Circuit Court of St. Louis County, Hon. George W. Draper III
Opinion Summary: The Director of Revenue, ("Director"), appeals from the judgment reinstating the driving privileges of Michael A. Lyons, ("driver"). Director revoked driver's driving privileges for one year for refusing to consent to a chemical test of his blood pursuant to section 577.041, RSMo Cum. Supp. 1997.1 Driver filed a petition for review with the circuit court. The court assigned the petition to a commissioner for hearing, during which, the commissioner recommended the reinstatement of driver's driving privileges. The circuit court adopted the findings and recommendations of the commissioner as the judgment of the court.
Division Three Holds: The commissioner's finding there was no evidence driver knowingly refused to consent to a chemical test of his blood demanded a higher evidentiary burden than that stated in the statute and therefore erroneously declares the law. And the introduction of uncontroverted evidence of refusal to submit to a blood alcohol test submitted on the record, in the form of an Alcohol Influence Report and an officer's narrative, is sufficient evidence to establish refusal to submit to a test.
Note:
The Director of Revenue, ("Director"), appeals from the judgment reinstating the driving privileges of Michael A. Lyons, ("driver"). We reverse and remand.1
Director revoked driver's driving privileges for one year for refusing to consent to a chemical test of his blood pursuant to Section 577.041, RSMo Cum. Supp. 1997.2 Driver filed a petition for review with the circuit court. The court assigned the petition to a commissioner for hearing.
On February 24, 2000, the parties appeared before the commissioner. The director submitted the case on the record, consisting of a notice of revocation, a certified copy of the alcohol influence report, the arresting officer's narrative, and driver's driving record. Driver presented no evidence.
The following facts were contained in the alcohol influence report and the arresting officer's narrative. The officer observed driver's vehicle on Highway 70 at Earth City at approximately 1:30 a.m. Driver was weaving back and forth from lane 3 to lane 1 and was also driving on the shoulder at times. The officer activated his lights and driver refused to stop for approximately a mile and a half. Driver exited the highway and eventually stopped in the intersection of St. Charles Rock Road and Natural Bridge.
The officer approached the driver who smelled of a strong alcoholic beverage. It is also indicated in the report that driver had sagging knees, his walk was staggering, his eyes were staring, his attitude was insulting and combative, and his actions were of profanity and fighting. Driver was asked to step out of his vehicle. The officer indicates in his report that he administered the gaze nystagmus test which driver failed. The officer noted he felt the walk-and-turn test and the one leg stand were "unsafe to administer."
The officer informed driver he was under arrest and driver became very violent. Driver ran toward the officer, yelling, "I'm not going to jail" with his fist clenched. The officer maced the driver. The officer then tried to place driver under arrest when driver pushed the officer and they both fell down into a six-foot ravine. The officer was able to push his emergency button alerting back up units. Subsequently, driver was handcuffed and conveyed to the hospital by an ambulance.
The alcohol influence report indicates the officer read the implied consent warning to driver at the hospital, and requested he submit to a chemical test of his blood. The officer noted driver refused to take the test by checking the box "no" by the question "will you take the test" and indicating the time as 2:25 a.m. Also, at the bottom of the page of the implied consent form, the officer wrote down "refused."
The commissioner found the arresting officer had probable cause to arrest driver for driving while intoxicated, but found there was no evidence to prove driver knowingly refused to submit to the chemical test of his blood. The commissioner...
To continue reading
Request your trial
-
Zummo v. Director of Revenue
...(Mo.App. 2006); see Curnutt, 142 S.W.3d at 227; Burk v. Director of Revenue, 71 S.W.3d 686, 687 (Mo.App.2002); Lyons v. Director of Revenue, 36 S.W.3d 409, 411 (Mo.App. 2001). The AIR and incident report contain sufficient facts to prove that Zummo was arrested and refused the breath test, ......
-
Howdeshell v. Director of Revenue
...alone. See, e.g., Curnutt, 142 S.W.3d at 227; Burk v. Director of Revenue, 71 S.W.3d 686, 687 (Mo.App.2002); Lyons v. Director of Revenue, 36 S.W.3d 409, 411 (Mo.App. 2001); McCabe v. Director of Revenue, 7 S.W.3d 12, 14 (Mo.App.1999). On appeal, the Director and Howdeshell agree that Exhib......
-
Wei v. Dir. of Revenue
...and a Narrative Report. See Zummo, 212 S.W.3d at 241; Burk v. Dir. of Revenue, 71 S.W.3d 686, 687 (Mo.App.2002); Lyons v. Dir. of Revenue, 36 S.W.3d 409, 411 (Mo.App.2001). Additionally, Driver had every opportunity to cross-examine Trooper Dillon during the course of his depositions and co......
-
Wei v. Dir. Of Revenue
...and a Narrative Report. See Zummo, 212 S.W.3d at 241; Burk v. Dir. of Revenue, 71 S.W.3d 686, 687 (Mo.App. 2002); Lyons v. Dir. of Revenue, 36 S.W.3d 409, 411 (Mo.App. 2001). Additionally, Driver hadevery opportunity to cross-examine Trooper Dillon during the course of his depositions and c......