McFall v. Director, Dept. of Revenue

• Decision Date: 18 May 2005
• Docket Number: No. 26189.,26189.
• Citation: 162 S.W.3d 526
• Parties: Travis Alan McFALL, Respondent, v. DIRECTOR, DEPARTMENT OF REVENUE, Appellant.
• Court: Missouri Supreme Court

162 S.W.3d 526

Travis Alan McFALL, Respondent, v. DIRECTOR, DEPARTMENT OF REVENUE, Appellant.

No. 26189.

Missouri Court of Appeals, Southern District, Division Two.

May 18, 2005.

COPYRIGHT MATERIAL OMITTED

Jeremiah W. (Jay) Nixon, Atty. Gen., Cheryl Caponegro Nield, Asst. Atty. Gen., Jefferson City, for appellant.

No Brief Filed for Respondent.

Before BATES, C.J., SHRUM, and BARNEY, JJ.

PER CURIAM.

The Director of Revenue ("Director") appeals from a judgment setting aside the administrative suspension of the driver's license of Respondent Travis A. McFall ("Driver") after a trial de novo in the circuit court. Director contends the trial court erred in reinstating Driver's driving privileges because Director made a prima facia case for suspension which Driver failed to rebut. We reverse and remand the case with directions to enter a judgment sustaining the Director's suspension of Driver's driving privileges.

The parties submitted the case on Director's records to the court at a bench trial.¹ Driver presented no evidence at trial. The record reveals that law enforcement officials were notified of a one-vehicle accident involving a pedestrian in front of the Kelso Country Club Bar on Messmer Street in Kelso, Missouri, which occurred at approximately 1:20 a.m. on May 4, 2003. Corporal Mark Winder ("Winder") of the Missouri State Highway Patrol was notified of the event at 1:45 a.m. and responded to the scene at 1:57 a.m. Winder was informed by local officers that as the bar closed, the patrons had emptied into the street and several fights had broken out. At about 1:20 a.m., one of the bar patrons, Justin Kluesner ("Kluesner"), was arguing with Jody Kelsey ("Kelsey"). During the argument, Kelsey pushed Kluesner, who then fell back and was struck by the right front corner panel of a gray Chrysler minivan which was passing by the scene. The minivan slowed briefly and then drove away.

Several patrons at the bar informed authorities that the minivan was owned and driven by Driver. At approximately 2:20 a.m., Winder went to Driver's residence in Scott City, Missouri. The minivan was not parked at the residence. As Winder made contact with Driver, Winder detected a strong odor of intoxicants on his breath and his eyes were glassy, bloodshot and staring. Driver denied being at the Kelso Country Club Bar that night and related that his minivan was at the home of his boss, William LeGrand ("LeGrand").

As a result of his discussion with Driver, Winder went to the home of LeGrand, whereupon Winder found the minivan. Upon inspection, the minivan had damage to the right front corner panel. When asked how long the minivan had been at his home, LeGrand responded that it had been there "all day." LeGrand also appeared to Winder to be intoxicated as well as nervous and evasive. After further questioning, LeGrand admitted to Winder that Driver had driven the minivan to LeGrand's residence at approximately 1:30 a.m. that morning and "had asked him to park the vehicle in his garage ... to hide it." LeGrand said he did not question Driver.

At 2:40 a.m., Winder returned to Driver's residence. It was then that Driver admitted to having driven his minivan to LeGrand's residence; however, he stated that he did not remember driving the vehicle in front of the Kelso Country Club Bar earlier in the evening. It was at this point that Winder arrested Driver for leaving the scene of an accident. Driver was also informed of his Miranda² rights, which he waived, and he was then transported to the Scott County Jail for processing. While en route to the jail and after further questioning, Driver admitted that he was driving during the incident in question. He related that as the fights broke out, he was trying to leave the area. He felt a "bump" on the side of his minivan, but he was not aware that he had hit someone. When asked why he attempted to hide his vehicle and why he initially lied about his involvement in the accident, Driver stated he was "scared."

At the Scott County Jail, Winder administered three field sobriety tests to Driver; he performed poorly on the tests. At that point, Driver was advised that he was under arrest for driving while intoxicated pursuant to section 577.010. At 3:20 a.m Driver agreed to take a breath test. The result of the breath test showed his blood alcohol level to be .139 percent by weight. Driver's driving privileges were subsequently suspended by Director.

After a bench trial in which Driver presented no evidence, the trial court entered a judgment reinstating Driver's driver's license and striking the administrative suspension from Driver's driving record. In its judgment, the trial court set out that Driver "was not arrested upon probable cause to believe that [Driver] was driving a motor vehicle with an alcohol concentration of .08 or more by weight." The trial court explained that "because the arresting officer had not asked [Driver] if he had had anything to drink in the hour and a half preceding his arrest, the officer could have no possible way of believing that [Driver] was driving with a blood alcohol concentration in excess of .08 over one and a half hours earlier."

In her appeal, Director maintains the trial court erred in reinstating Driver's driving privileges because of the trial court's misapplication of the law and because the trial court's judgment was not supported by substantial evidence. Director maintains that

the time between when [Driver] last drove and his arrest for DWI is not determinative of probable cause where the arresting officer has evidence that a driver identified by witnesses as [Driver] hit a pedestrian and left the scene in order to hide his vehicle, that vehicle had damage consistent with the witness reports of the crash and how it occurred, and [Driver] was found at home exhibiting indicia of intoxication, and [Driver] never claims, either to the officer or at trial, to have been drinking after driving.

We review the trial court's judgment after a trial de novo pursuant to the familiar standards established by Rule 84.13(d). See also Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). "This Court will affirm the trial court's judgment unless there is no substantial evidence to support it, unless the decision is contrary to the weight of the evidence, or unless the trial court erroneously declares or applies the law." Hinnah v. Dir. of Revenue, 77 S.W.3d 616, 620 (Mo. banc 2002). "`This Court defers to the trial court's determination of credibility.'" Swanberg v. Dir. of Revenue, 122 S.W.3d 87, 90 (Mo.App.2003) (quoting Hinnah, 77 S.W.3d at 620). However, "[i]f the evidence is uncontroverted or admitted so that the real issue is a legal one as to the legal effect of the evidence, then there is no need to defer to the trial court's judgment." Hinnah, 77 S.W.3d at 620. Deference to the trial court's findings and judgment is not required when the case is virtually one of admitting the facts or when the evidence is not in conflict. Myers v. Dir. of Revenue, 9 S.W.3d 25, 28 (Mo.App.1999).

To make a prima facie case for license suspension pursuant to section 302.505, "Director is required to show two elements by a preponderance of the evidence. First, the Director must establish that the person was arrested upon probable cause. Second, the Director must show that the person had a blood alcohol concentration of .080 percent [by weight] at the time of the arrest."³ Lawson v. Dir. of Revenue, 145 S.W.3d 443, 445 (Mo.App.2004) (internal citation omitted).

"Probable cause exists when the facts and circumstances warrant a person of reasonable caution to believe that an offense has been or is being committed, based on the circumstances as they appear to a prudent, cautious and trained police officer." Walker v. Dir. of Revenue, 137 S.W.3d 444, 446 (Mo. banc 2004). "It is not necessary for an officer to actually observe a person driving to have probable cause to arrest the person for driving while intoxicated." Green v. Dir. of Revenue, 148 S.W.3d 892, 895 (Mo.App.2004). "An officer has a right to rely upon information communicated via police dispatch ... and information reported by citizen witnesses." Id. (internal citations omitted); Spry v. Dir. of Revenue, 144 S.W.3d 362, 369 n. 5 (Mo.App.2004) (holding that "[i]t is well-established that a police officer has a right to rely upon this type of information from citizen witnesses as one part of the factual matrix supporting a probable cause determination"). Also, "[a]n arresting officer may establish probable cause that a person was driving from the person's admissions alone." Oates v. Dir. of Revenue, 67 S.W.3d 664, 666 (Mo.App.2002). "These showings must be made by a preponderance of the evidence." Misener v. Dir. of Revenue, 13 S.W.3d 666, 668 (Mo.App.2000) (overruled in part by Verdoorn v. Dir. of Revenue, 119 S.W.3d 543 (Mo.2003)). However, the "level of proof necessary to show probable cause under section 302.505 is substantially less than that required to establish guilt beyond a reasonable doubt." Brown v. Dir. of Revenue, 85 S.W.3d 1, 4 (Mo. banc 2002) (internal quotation omitted). "When Director makes a prima facie case, the burden then shifts to Driver." Misener, 13 S.W.3d at 668. However, the driver's burden is one of production—not persuasion. The director retains the burden of proof throughout the proceeding. Verdoorn, 119 S.W.3d at 546.

The disposition of this case is governed by Howard v. McNeill, 716 S.W.2d 912 (Mo.App.1986).⁴ In McNeill, Officer Cordia received a report of an automobile collision which had occurred at 12:55 a.m. and he arrived at the scene some twenty-five minutes later. Id. at 913. Present at the scene was one of two drivers involved in the collision. Id. The other driver, McNeill, had been permitted to depart the scene in a friend's vehicle, to seek medical attention at a local hospital; however, "[a] radio call to the hospital revealed that [McNeill] had not arrived."...