Misener v. Director of Revenue

• Decision Date: 07 March 2000
• Citation: 13 S.W.3d 666
• Parties: (Mo.App. E.D. 2000) . Scott Allen Misener, Respondent, v. Director of Revenue, State of Missouri, Appellant. Case Number: ED75605 Missouri Court of Appeals Eastern District Handdown Date: 0
• Court: Missouri Court of Appeals

13 S.W.3d 666 (Mo.App. E.D. 2000)

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.

Scott Allen Misener, Respondent, v. Director of Revenue, State of Missouri, Appellant.

Case Number: ED75605

Missouri Court of Appeals Eastern District

Handdown Date: 03/07/2000

Appeal From: Circuit Court of St. Louis County, Hon. George Draper, III

Counsel for Appellant: Evan J. Buchheim

Counsel for Respondent: Robert Ciuffa

Opinion Summary: The Director of Revenue appeals from the trial court's judgment setting aside Director's revocation of Scott Allen Misener's driving privileges.

REVERSED AND REMANDED WITH INSTRUCTIONS.

Division Four holds: The trial court's finding that the arresting officer lacked probable cause to arrest Driver for driving while intoxicated was not supported by substantial evidence and is a misapplication of the law.

Opinion Author: Honorable Mary K. Hoff

Opinion Vote: REVERSED AND REMANDED WITH INSTRUCTIONS. Crandall, Jr., P.J. and Crist, S.J., concur.

Opinion:

The Director of Revenue (Director) appeals from the trial court's judgment setting aside Director's revocation of Scott Allen Misener's (Driver's) driving privileges. We reverse and remand and direct the trial court to reinstate Driver's revocation.

Director revoked Driver's driving privileges for driving while intoxicated under Section 302.505, RSMo Supp. 1997. Driver filed a petition for a trial de novo in St. Louis County Circuit Court. The arresting officer testified for Director and Director offered into evidence records concerning Driver's breathalyzer test results. Driver did not present witnesses or documentary evidence at trial. The trial court found Driver's blood alcohol content was at least .10 percent, but set aside Director's decision because Director did not prove the arresting officer had probable cause to arrest Driver for driving while intoxicated.

In its sole point on appeal, Director urges it did prove probable cause for Driver's arrest. The Director argues the judgment of the trial court should be reversed because its decision misapplied the law and is against the weight of the evidence.

Officer Stevener was the only witness at trial. He testified that around 5:20 a.m. on June 14, 1998 he responded to the scene of a one-car accident. Driver's pickup truck had overturned in a creek bed and a tow truck was already at the scene. Soon after the officer arrived, Driver approached from a nearby apartment complex carrying a cup of water. The officer observed Driver was having trouble walking. He stumbled and fell two times while approaching the officer. The officer noticed Driver's speech was slurred and his eyes were watery and bloodshot. The officer also smelled the moderate odor of an intoxicating beverage on Driver.

Driver admitted to the officer that he had been driving the pickup truck. Driver stated he had driven into the creek while trying to avoid a dog that had run into the road in front of his vehicle. Driver claimed the accident happened two and a half hours earlier and he had walked home and then later decided to call a tow truck. Driver did not indicate to the officer that he had been drinking since the accident occurred.

The officer had Driver perform a number of field sobriety tests. Driver counted backwards correctly, but he did so slowly and methodically. He was unable to recite the alphabet. Driver also failed the Horizontal Gaze Nystagmus test. Based on Driver's unsatisfactory performance of those tests, the officer concluded Driver was intoxicated.

The officer arrested Driver for driving while intoxicated. He took Driver to the police station for a breathalyzer test, administered at 6:50 a.m. that day, which indicated Driver had a blood alcohol content of .128 percent.

Director also offered into evidence the Department of Revenue records which included: (1) the checklist the officer went through when administering the breathalyzer test; (2) the BAC Datamaster Evidence ticket from June 14, 1998 which shows Driver's blood alcohol content at .128 percent; (3) a permit for the officer who administered the test; (4) the Datamaster Maintenance Report dated May 14, 1998; (5) the Certificate of Analysis of the simulator solution for the Datamaster from Guth Laboratories, Inc.; and (6) a permit for the officer who performed the maintenance check on the Datamaster. We note that Driver has not filed a brief responding to Director's appeal.

We affirm the decision of the trial court unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

At trial, Director has the burden of proving a prima facie case for suspension of a driver's license by presenting evidence that: (1) the driver was arrested on probable cause that he or she was driving in...