Middlemas v. Director of Revenue

• Decision Date: 31 March 2005
• Docket Number: No. 26112.,26112.
• Citation: 159 S.W.3d 515
• Court: Missouri Court of Appeals
• Parties: James B. MIDDLEMAS, Petitioner-Respondent, v. DIRECTOR OF REVENUE, STATE OF MISSOURI, Respondent-Appellant.

159 S.W.3d 515

James B. MIDDLEMAS, Petitioner-Respondent, v. DIRECTOR OF REVENUE, STATE OF MISSOURI, Respondent-Appellant.

No. 26112.

Missouri Court of Appeals, Southern District, Division Two.

March 31, 2005.

James B. Middlemas, Harrisonville, pro se.

Jeremiah W. (Jay) Nixon, Atty. Gen., Robert E. Carlson, Asst. Atty. Gen., Jefferson City, for appellant.

No brief filed by Respondent.

JEFFREY W. BATES, Chief Judge.

The Director of Revenue ("Director") appeals from a judgment setting aside the administrative suspension of the driver's license of James Middlemas ("Petitioner") after a trial de novo in circuit court. The Director contends the trial court erred because she made a prima facie case for suspension which Petitioner failed to rebut. We reverse and remand the case with directions to enter a judgment sustaining the Director's suspension of Petitioner's license.

The Department of Revenue is authorized to suspend the driver's license of any person "arrested upon probable cause to believe such person was driving a motor vehicle while the alcohol concentration in the person's blood, breath, or urine was eight-hundredths of one percent or more by weight...." § 302.505.1.¹ After an adverse decision from the Department of Revenue, a driver may file a petition for a trial de novo in circuit court. § 302.535.1; Hlavacek v. Director of Revenue, 129 S.W.3d 374, 377 (Mo.App.2003). The following quotation succinctly summarizes the respective burdens imposed upon the Director and the driver at such a trial:

In order to make a prima facie case for license suspension, the 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 at the time of the arrest.... The Director has the burden to present a prima facie case. If that threshold is met, the driver is entitled to present evidence in an attempt to rebut the Director's prima facie case. While the burden of production shifts to the driver when the Director establishes a prima facie case, the burden of persuasion remains with the Director throughout the proceedings.

Lawson v. Director of Revenue, 145 S.W.3d 443, 445-46 (Mo.App.2004) (citations omitted).

We review the trial court's judgment after a trial de novo pursuant to the familiar standards established by Rule 84.13(d) and Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).² Ruth v. Director of Revenue, 143 S.W.3d 741, 744 (Mo.App.2004). "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." Verdoorn v. Director of Revenue, 119 S.W.3d 543, 545 (Mo. banc 2003).

In determining whether the trial court's judgment is supported by the evidence or is against the weight of the evidence, we defer to the trial court's credibility determinations. See Hinnah v. Director of Revenue, 77 S.W.3d 616, 620

(Mo. banc 2002). It is important to point out, however, that "[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." Id. Furthermore, a trial court is not free to disregard unequivocal and uncontradicted evidence that supports the Director's contentions. Laney v. Director of Revenue, 144 S.W.3d 350, 352 (Mo.App.2004); Spry v. Director of Revenue, 144 S.W.3d 362, 367 (Mo.App.2004); Curnutt v. Director of Revenue, 142 S.W.3d 225, 227 (Mo.App.2004). The standard of review does not allow an appellate court to disregard uncontroverted evidence meeting all elements of the Director's case. Laney, 144 S.W.3d at 352.

The record reveals that Petitioner's driver's license was suspended by the Department of Revenue effective December 12, 2002, after an administrative hearing. A petition for trial de novo in circuit court was filed by Petitioner that same day.

The trial de novo was held on April 29, 2003. The Director's proof was documentary in nature and consisted of 13 pages of certified records from the Department of Revenue.³ These records included an Incident Report from the Springfield Police Department and an Alcohol Influence Report ("AIR"). The narrative portion of the Incident Report contains the following description of the events that led up to Petitioner's arrest for driving while intoxicated and the suspension of his license:

While driving in the area of 1800 E Meadowmere, I saw a silver vehicle leave the bar area. I noticed the vehicle drove west from the bar and drove across Glenstone. I saw the vehicle park abnormally (perpendicular to the spaces). I then noticed the vehicle return to the bar area. I followed the vehicle when it left the bar a second time. I noticed the Silver vehicle turn left (south) onto Glenstone. I noticed the vehicle "bounce" from lane divider to lane divider. The vehicle crossed both the inside/turn lane and the inside/outside S/B lane dividers just north of and south of Glenstone/Sunshine. I turned on my emergency lights at Cherokee/Glenstone. The vehicle immediately careened from the inside S/B line to the Brown Derby parking lot.

When I walked up to the vehicle, the door opened. I told the driver to close the door. He ignored me. I walked up and told the driver, later identified as James Middlemas, that I was closing the door. I closed the door and told Middlemas to roll down the window (through a small crack in the window). Middlemas stumbled around with the controls for several seconds before finally getting the window down. I introduced myself and explained the reasons for the stop. Middlemas said he was going to his hotel. I noticed Middlemas was slurring heavily and I also noticed a very strong odor of intoxicants from Middlesmas's mouth when he spoke. I asked Middlemas how much he had to drink. Middlemas said, "I had a beer earlier." CPL. R. Schroeder arrived as my back-up officer.

I asked Middlemas to exit the vehicle to perform some sobriety tests. Middlemas opened the door and almost fell out of the vehicle. I instructed Middlemas to walk to the other side (passenger side) of the vehicle to perform the tests (level debris-free asphalt). Middlemas walked with a heavy stagger and almost fell again. (SEE SFST's ON PAGE 1 OF THE AIR FORM). I arrested Middlemas for driving while intoxicated. I handcuffed (D/L) Middlemas and placed him in the rear of my vehicle. CPL Schroeder handled the Tow portion of the arrest. I transported Middlemas to County jail in my patrol unit.

I arrived and escorted Middlemas into the BAC room at the jail. I read Middlemas the Miranda Warning. Middlemas said he understood his rights. I then completed the interview portion of the AIR. I then read Middlemas Implied Consent. Middlemas consented to a breath test. Middlemas submitted a breath sample of 0.244. I issued Middlemas the Notice of Revocation [sic] and 2 summons (DWI and Lane Violation). I booked Middlemas into the jail for DWI.

During the AIR interview, Petitioner admitted that he drank a six-pack of beer and three glasses of wine during a two-hour period while he was at the bar. According to the AIR, Petitioner also was observed for at least 15 minutes before being given the Breathalyzer test. During that period of time, no smoking, vomiting or oral intake of any material occurred. The only objection Petitioner's attorney made to the certified records was to "the Breathalyzer results on the grounds that it was not — Department of Health regulations were not followed." The trial court admitted the records subject to that objection, and the Director rested.

To rebut the Director's case, Petitioner testified that: (1) he had been left alone in the booking room for five to 15 minutes; (2) when the arresting officer returned, he observed Petitioner only six to seven minutes before administering the Breathalyzer test; (3) the officer did not ask Petitioner if he had anything in his mouth; and (4) Petitioner was chewing gum at the scene and still had the gum in his mouth when he took the Breathalyzer test. Petitioner presented no evidence other than his own testimony. At the conclusion of the hearing, the trial judge took the case under advisement.

On January 22, 2004, the trial court entered its judgment in the cause. The pertinent portion of the judgment stated:

Upon due consideration of the evidence, the Court finds by a preponderance of the evidence that Petitioner was arrested upon probable cause to believe that he had committed an alcohol-related traffic offense, on September 4, 2002, in Greene County, Missouri. The Court further finds that the Petitioner had gum in his mouth at the time of the breath test and that the presence of gum contaminated the results of the blood alcohol test. Therefore, the Court finds that the suspension of Petitioner's driving privileges pursuant to § 302.505.1, RSMo, should be and is hereby set aside.

On February 18, 2004, the trial court filed an "Amended Permanent Order and Judgment" which had been prepared by Petitioner's attorney. This document appears to have been executed without giving the Director notice or an opportunity to be heard on the matter. Omitting the caption, title, signature and date lines, the document contained only three sentences:

The court finds The Department of Revenue failed to show that the breathalyzer result was obtained in compliance with regulation 19 CSR 25-30.060, in that the court found the plaintiff was not observed for the 15 minute period. The court relied on the testimony of the plaintiff in making its determination. It is so ordered[.]

This appeal followed.

As a preliminary matter, we first address the Director's contention that the so-called "Amended Permanent Order and Judgment" entered on February 18, 2004...