Nace v. Director of Revenue
| Decision Date | 28 October 2003 |
| Docket Number | No. WD 62122.,WD 62122. |
| Citation | 123 S.W.3d 252 |
| Parties | Linda Lorraine NACE, Respondent, v. DIRECTOR OF REVENUE, Appellant. |
| Court | Missouri Court of Appeals |
Clayton T. Fielder, Jefferson City, for appellant.
Daniel R. Carter, Warrensburg, for respondent.
Before PAUL M. SPINDEN, P.J., THOMAS H. NEWTON and RONALD R. HOLLIGER, JJ.
Ms. Linda Lorraine Nace was severely injured in a one-car accident. After Ms. Nace was taken to a hospital, a Missouri State Highway Patrolman (Trooper) arrived at the hospital and requested that she submit a blood sample to determine her blood alcohol content. The trooper contended that Ms. Nace refused and the Director of Revenue (Director) subsequently revoked Ms. Nace's driver's license pursuant to section 577.041.1 After a hearing on the matter, the trial court found that she did not refuse the request for a blood sample. We affirm.
At the hearing to challenge Ms. Nace's driver's license revocation, the following evidence was presented. On January 21, 2002, at 12:41 a.m., Ms. Nace was involved in a one-car accident on Missouri Highway 13 in Johnson County, Missouri. Ms. Nace was ejected from her vehicle, which had gone airborne and overturned as it struck the ground. When Missouri State Highway Patrol Trooper Dan Schubert arrived at the scene and attempted to question Ms. Nace while she was lying in the back of an ambulance, he observed that there was a strong odor of intoxicants emitting from her breath. Trooper Schubert tried to administer a horizontal gaze nystagmus test on Ms. Nace but her eyes would not stay open. Trooper Schubert testified in part, "She was pretty impaired, and she was unable to open—hold her eyes open." He did administer a portable breath test on Ms. Nace at the scene of the accident, which indicated the presence of alcohol.
Ms. Nace was lifeflighted to Research Medical Center in Kansas City, Missouri. At about 1:45 a.m., Trooper Alex Whitehead went to the hospital at Trooper Schubert's request to draw blood from Ms. Nace. Trooper Whitehead asked Ms. Nace to provide a blood sample and he testified that Ms. Nace refused. Ms. Nace testified that she could not remember the accident, talking to any police officer, or being asked to take the test.
Also, according to Trooper Schubert, Trooper Whitehead told him that Ms. Nace was unable to respond to questions due to her medical condition. On a portion of the Alcohol Influence Report (AIR), Trooper Schubert wrote, "unable to respond to questions due to medical condition."
John Nace, Ms. Nace's brother, testified by deposition and Ms. Ellen Nace, the mother of Ms. Nace, testified in person. Mr. Nace testified that he arrived at the hospital about 2:00 a.m. and that his sister could not recognize him and was semi-conscious. He tried to talk to her, but she did not respond. Furthermore, the injuries he observed were: A large contusion on the middle of her forehead, blood on her face, and various cuts and scratches. Ms. Ellen Nace testified that she arrived at the hospital around 3:00 a.m. and, at that time, her daughter did not respond to her and appeared to be incoherent.
After the hearing, the trial court found that Ms. Nace did not refuse to submit to a chemical test and ordered the Director to restore Ms. Nace's driving privileges.
The Director appeals the decision of the trial court claiming it erred in reinstating Ms. Nace's driving privileges because the judgment that Ms. Nace did not refuse the blood test was against the weight of the evidence and unsupported by substantial evidence. The Director asserts that the only evidence in the record regarding refusal of the test is the testimony of Trooper Whitehead that Ms. Nace said "no" when asked to submit to a blood test, and Ms. Nace's testimony that she did not remember refusing to submit to a blood test. The Director claims that the trial court should have found that Ms. Nace refused the test.
Review of the trial court's decision regarding the revocation of a driver's license will be sustained by the appellate court unless there is no substantial evidence to support it, 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). "In reviewing the trial court's judgment, we view the evidence and all reasonable inferences drawn therefrom in the light most favorable to the judgment." Kidd v. Wilson, 50 S.W.3d 858, 860 (Mo.App. W.D.2001).
When a person drives on the public highways of Missouri, she is deemed to have given consent to chemical tests for the purpose of determining the alcohol or drug content of her blood if arrested for an offense related to driving a motor vehicle while intoxicated. § 577.020. Ms. Nace's driver's license was revoked under Section 577.041 based on her refusal to submit a sample of her blood to Trooper Whitehead for testing under section 577.020. Section 577.041.1 provides in pertinent part:
If a person under arrest, or who has been stopped pursuant to subdivision (2) or (3) of subsection 1 of section 577.020, refuses upon the request of the officer to submit to any test allowed pursuant to section 577.020, then none shall be given and evidence of the refusal shall be admissible in a proceeding pursuant to section 565.024 or 565.060, RSMo, or section 577.010 or 577.012. The request of the officer shall include the reasons of the officer for requesting the person to submit to a test and also shall inform the person that evidence of refusal to take the test may be used against such person and that the person's license shall be immediately revoked upon refusal to take the test.
To uphold a driver's license revocation for failure to submit to a chemical test under section 577.041, the trial court must determine that "(1) the driver was arrested, (2) the arresting officer had reasonable grounds to believe the driver was driving while intoxicated, and (3) the driver refused to submit to the test." Mount v. Dir. of Revenue, 62 S.W.3d 597, 599 (Mo.App. W.D.2001). The Director has the burden of proof for each element, and failure to satisfy the burden will result in reinstatement of the driver's license. Id. The only issue here is whether Ms. Nace refused to submit to the test.
Ms. Nace claims that due to her injuries in the accident, she was incapable of refusing to give a sample of her blood, and, therefore, her license cannot be revoked under section 577.041. Ms. Nace relies on section 577.033 for this proposition, which states:
Any person who is dead, unconscious or who is otherwise in a condition rendering him incapable of refusing to take a test as provided in sections 577.020 to 577.041 shall be deemed not to have withdrawn the consent provided by section 577.020 and the test or tests may be administered.
Ms. Nace testified that she did not remember the wreck or speaking with Trooper Whitehead. She claims that her witnesses and the medical records show her to be non-responsive to any questions until the next afternoon, so she could not have responded to Trooper Whitehead's request that she give a blood sample and, therefore, she did not refuse to take a test.
Cartwright v. Director of Revenue, 824 S.W.2d 38, 39 (Mo.App. W.D.1991), established the test for determining if a driver refused to submit to a test for alcohol content when the driver claims not to remember the request. Mr. Cartwright was involved in a one-car accident and he was taken to a hospital. A police officer arrived at the hospital and noticed an odor of alcohol from Mr. Cartwright. The officer talked to Mr. Cartwright and asked him to submit to a blood test for alcohol content. According to the officer, Mr. Cartwright refused. Id. Mr. Cartwright claimed that he did not remember speaking with the police officer, nor did he remember the request to give a blood sample. Id. The trial court stated it believed Mr. Cartwright's testimony that he was not aware of what was going on and held that he did not refuse to submit to a test. Id. at 39-40.
On appeal, this court stated that the question in the case was "not one of credibility but whether or not the refusal to take a test must be knowing." Id. at 40. Mr. Cartwright claimed that he did not remember talking with the officer because of a blow to his head. Id. This court held that "[t]here is nothing in the implied consent law which requires that a refusal be knowing, and an officer is entitled to take a refusal at face value without being required to determine the person's mental capacity to make such decision." Id. at 41. The only issue was whether or not Mr. Cartwright refused, and the only relevant evidence was the officer's testimony that Mr. Cartwright refused to submit to a blood test. Id. Mr. Cartwright's testimony that he did not remember refusing was irrelevant to that issue because it only applied to whether he knowingly refused. Id.
The Missouri Supreme Court adopted this objective test in Berry v. Director of Revenue 885 S.W.2d 326, 327 (Mo. banc 1994). In Berry, the trial court applied section 577.033, saying Mr. Berry was incapable of refusing due to his injuries, not his intoxication. The Eastern District affirmed, stating that Mr. Berry's injury made Cartwright inapplicable. Berry v. Dir. of Revenue, No. 63736, 1994 WL 4283 (Mo.App. E.D. January 11, 1994). The Missouri Supreme Court reversed, holding that Mr. Berry's contention that his injuries made him unable to refuse a test was without merit and that his case was indistinguishable from Cartwright. Berry, 885 S.W.2d at 327. An officer testified that Mr. Berry stated he "knew his rights" and refused to give a blood sample, and that Mr. Berry "appeared coherent and engaged in a normal conversation with a hospital...
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