Montesano v. James, 13036

• Decision Date: 28 July 1983
• Docket Number: No. 13036,13036
• Citation: 655 S.W.2d 137
• Parties: Robert J. MONTESANO, Plaintiff-Appellant, v. Ray JAMES, Director of Revenue, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 137

655 S.W.2d 137

Robert J. MONTESANO, Plaintiff-Appellant, v. Ray JAMES, Director of Revenue, Defendant-Respondent.

No. 13036.

Missouri Court of Appeals,

Southern District,

Division One.

July 28, 1983.

Joseph B. Phillips, Phillips & Phillips, Stockton, for plaintiff-appellant.

Tony E. Swetnam, Pros. Atty., Stockton, for defendant-respondent.

TITUS, Judge.

Plaintiff, a resident of Cedar County, was arrested August 1, 1982, in and by a Kansas City police officer for driving while intoxicated. The officer thereafter submitted his affidavit to the director of revenue (defendant herein) that plaintiff had refused to submit to a chemical test and the defendant notified plaintiff his operating permit would be revoked effective September 5, 1982. Plaintiff filed his petition and application in the Circuit Court of Cedar County on September 3, 1982, to stay defendant's order pending the court's determination of the validity of defendant's action. On the same date the court ordered defendant to cease and desist from enforcing his order and was directed to appear September 20, 1982, to show cause why the order should not be made permanent. A hearing was conducted on the ordered appearance date wherein the arresting officer was the only witness and the matter was taken under advisement by the court. Under date of November 1, 1982, the court entered its judgment wherein it found that (1) plaintiff was the person arrested, (2) that the arresting officer had reasonable grounds to believe plaintiff was driving a motor vehicle while in an intoxicated condition and (3) that plaintiff refused to submit to the chemical test. § 577.050, V.A.M.S. (now § 577.041-2). Upon the basis of the foregoing the court ordered, adjudged and decreed that plaintiff's petition be denied and that the court's order of September 3, 1982, be vacated and set aside. Plaintiff appealed.

Plaintiff's action was civil in nature and is to be governed by rules pertaining to appeals in civil proceedings. Gothard v. Spradling, 561 S.W.2d 448, 449 (Mo.App.1978). Appeals in court-tried civil actions are governed by Rule 73.01(c), V.A.M.R., which has been construed to mean that the "judgment of the trial court will be sustained by the appellate court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. Appellate courts should exercise the power to set aside a decree or judgment on the ground that it is 'against the weight of the evidence' with caution and with a firm belief that the decree or judgment is wrong." Murphy v. Carron, 536 S.W.2d 30, 32[1, 2] (Mo. banc 1976).

In effect the testimony of the police officer was that on August 1, 1982, he went to the vicinity of a two-car accident which had occurred at a Kansas City intersection. The collision happened when a car driven by one Bates failed to observe a stop sign and struck an automobile registered to and driven by plaintiff. Upon arriving at the scene the officer noticed "there was a strong odor of alcohol" on plaintiff's breath and plaintiff told the officer "he had three beers." The policeman asked plaintiff to take "a field sobriety test" and plaintiff complied. This consisted of plaintiff putting his head back, extending his arms outward and touching the tip of his nose with his right index finger and also walking "six steps up, five steps back." When asked how plaintiff had performed the tests, the officer answered "Fair" and explained the label by saying that plaintiff performed the tests "Slowly," indicating to the officer that plaintiff "may have been under the influence of alcohol." Following the field sobriety test, the officer arrested plaintiff, § 557.039, V.A.M.S., took him to the police station and informed plaintiff "several times" that if he did not take the prescribed breathalyzer test "the State of Missouri may revoke his privilege to drive." Plaintiff, according to the policeman, initially asked several questions concerning the test but finally "decided h...