Neer v. Department of Revenue

• Decision Date: 24 October 2006
• Docket Number: No. WD 65235.,WD 65235.
• Citation: 204 S.W.3d 315
• Parties: Ronald Lynn NEER, Respondent, v. DEPARTMENT OF REVENUE, Appellant.
• Court: Missouri Court of Appeals

204 S.W.3d 315

Ronald Lynn NEER, Respondent, v. DEPARTMENT OF REVENUE, Appellant.

No. WD 65235.

Missouri Court of Appeals, Western District.

October 24, 2006.

Heidi Doerhoff, Assistant Attorney General, Jefferson City, MO, for appellant.

Kelly Halford Rose, Odessa, MO, for respondent.

Before BRECKENRIDGE, P.J., HOWARD and HOLLIGER, JJ.

PATRICIA BRECKENRIDGE, Judge.

The Director of Revenue appeals the judgment of the trial court setting aside the director's suspension of Ronald L. Neer's driver's license. The director suspended Mr. Neer's driver's license, pursuant to section 302.505, RSMo 2000,¹ for driving a motor vehicle while the alcohol concentration in his blood was at or above .08%. In her sole point on appeal, the director claims that the trial court erred in reinstating Mr. Neer's driver's license because it erroneously declared and applied the law in its judgment and its judgment is against the weight of the evidence. Specifically, the director claims that the trial court erroneously determined that the arresting officer did not have probable cause to arrest Mr. Neer for violating an alcohol related offense. Because the trial court erroneously declared and applied the law, the judgment of the trial court reinstating Mr. Neer's driver's license is reversed. The cause is remanded for the trial court to render a decision under the correct law.

Factual and Procedural Background

The evidence at trial was that, on April 24, 2004, at approximately 5:37 P.M., Officer Josh Thompson and Sergeant Tom Long of the Higginsville Police Department were dispatched to the home of Ada Jo and Dave Periman in response to a reported disturbance between Mr. Periman and Mr. Neer. Although Officer Thompson and Sergeant Long concluded that a disturbance had not taken place, Officer Thompson informed Sergeant Long that he detected the odor of intoxicants on Mr. Neer and that he was going to conduct a driving-while-intoxicated investigation because Mr. Neer said that he had driven to the Perimans' residence. Based on his observations of indicia of intoxication, Mr. Neer's failure of field sobriety tests, and Mr. Neer's admission that he had consumed intoxicants, Officer Thompson arrested Mr. Neer for driving while intoxicated. The results of a breath test of Mr. Neer's blood alcohol content revealed that he had a blood alcohol content of .150%.

In accordance with section 302.505, the director suspended Mr. Neer's driver's license, following an administrative hearing, where it was determined that Mr. Neer was arrested upon probable cause to believe that he had driven a motor vehicle with a blood alcohol content of more than .08%. Mr. Neer filed a petition for a trial de novo in the Circuit Court of Lafayette County. After the trial de novo, the trial court found that the evidence presented by the director was not such that a reasonably trained, prudent police officer could believe that he had probable cause to arrest Mr. Neer for driving in violation of an alcohol related offense, thus, failing to prove a prima facie case. The trial court reinstated Mr. Neer's driving privileges. The director appeals.

Standard of Review

This court will affirm the judgment of the trial 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. York v. Dir. of Revenue, 186 S.W.3d 267, 269 (Mo. banc 2006). The evidence will be viewed in the light most favorable to the judgment of the trial court, disregarding all contrary evidence and inferences. Kimbrell v. Dir. of Revenue, 192 S.W.3d 712, 714 (Mo.App. W.D.2006). The trial court's determination of the credibility of witnesses must be given deference upon review. York, 186 S.W.3d at 269.

Trial Court Misapplied the Law

The director claims that the trial court erred in reinstating Mr. Neer's driver's license because she established a prima facie case for the suspension of Mr. Neer's driver's license and the trial court misapplied the law. Specifically, the director asserts that the uncontroverted evidence established that Mr. Neer was arrested upon probable cause for violating an alcohol-related offense and that Mr. Neer's blood alcohol level exceeded the legal limit of .08%. She also claims that, in reaching its conclusion that she did not make a prima facie case, the trial court wrongly excluded evidence and required her to prove that Mr. Neer drove in a manner suggesting intoxication.

Under section 302.505, the director is required to suspend or revoke the license of any person upon determining that the person was arrested upon probable cause to believe such person was driving a motor vehicle with a blood alcohol concentration of .08% or more. A person who has received a notice of suspension or revocation can request an administrative hearing. Section 302.530.1.² A person aggrieved by a decision of the department may file a petition for a trial de novo in the circuit court of the county where the arrest occurred. Section 302.535.1.

Because Mr. Neer was aggrieved by the suspension of his driver's license, he filed a petition for a trial de novo in the Circuit Court of Lafayette County, under section 302.535.1. At the trial de novo, the burden of proof is on the director to establish grounds for suspension by a preponderance of the evidence. Verdoorn v. Dir. of Revenue, 119 S.W.3d 543, 545 (Mo. banc 2003). At trial, the director establishes a prima facie case for suspension under section 302.505 if the director presents evidence showing: (1) the driver was arrested on probable cause for violating an alcohol related offense; and (2) the driver's blood alcohol level exceeded the legal limit of .08%. Coyle v. Dir. of Revenue, 181 S.W.3d 62, 64 (Mo. banc 2005). The establishment of a prima facie case creates the presumption that there was probable cause for the arrest. Nelson v. Fischer, 190 S.W.3d 404, 407 (Mo.App. W.D.2006). Once the director establishes a prima facie case, the driver is entitled to rebut the prima facie case with evidence that there was not probable cause to arrest. Id. "[T]he director retains the burden of proof throughout the proceeding; the driver's burden is one of production-not persuasion." Id. Coyle, 181 S.W.3d at 65.

The director argues that she presented sufficient evidence to establish that the arresting officer had probable cause to arrest Mr. Neer for driving in violation of an alcohol related offense. "The probable cause required for the suspension or revocation of a driver's license is the level of probable cause necessary to arrest a driver for an alcohol-related violation." York, 186 S.W.3d at 270. Probable cause exists where the surrounding facts and circumstances indicate to "a reasonably prudent person that a particular offense has been or is being committed." Id. The director is not required to establish guilt beyond a reasonable doubt to prove probable cause. Id. The trial court views the facts as they would have appeared to a "prudent, cautious, and trained police officer." Id. The determination of whether there is probable cause to arrest is based on the information known to the officer prior to the arrest. Id.

At the trial on Mr. Neer's petition, in making a case for the suspension of Mr. Neer's driver's license, the director presented the testimony of Officer Thompson and Sergeant Long and certified copies of the Department of Revenue's records, which included Officer Thompson's Alcohol Influence Report and Offense/Incident Report. Mr. Neer then testified on his behalf. Upon this record, the trial court found that Officer Thompson did not have probable cause to arrest Mr. Neer for driving in violation of an alcohol-related offense. The correctness of the trial court's finding that Officer Thompson lacked probable cause to arrest Mr. Neer for driving in violation of an alcohol related offense is determined by evaluating the "surrounding facts and circumstances" known by Officer Thompson, so it is necessary to review the evidence of the surrounding facts and circumstances and address the director's claim that evidence that should have been considered was improperly excluded by the trial court.

At trial, Officer Thompson testified that while he was speaking to Mr. Neer, he detected the odor of intoxicants on Mr. Neer's breath. Officer Thompson also noticed that Mr. Neer's speech was slurred and that Mr. Neer was having a difficult time understanding why he was there. He testified that Mr. Neer told him that he had arrived less than five minutes prior to Officer Thompson's arrival and that he had driven to the Periman residence. When Officer Thompson asked Mr. Neer if he had any alcoholic beverages that day, Mr. Neer stated that he had two beers while watching friends play cards. Officer Thompson again asked Mr. Neer if he had driven to the Periman residence, and Mr. Neer said that he had. Mr. Neer pointed to his vehicle, a white Suburban, when Officer Thompson asked him if a brown vehicle parked at the location belonged to him.

Officer Thompson testified that Mr. Neer was having a difficult time standing without swaying and walking in a straight line. He asked Mr. Neer to submit to the Horizontal Gaze Nystagmus Test and found six of six indicators that Mr. Neer was intoxicated. Officer Thompson testified that, after the test, Mr. Neer told him that the test would be invalid because he had consumed one beer at the Periman residence prior to Officer Thompson's arrival. Officer Thompson also testified that Mr. Neer's eyes were bloodshot, watery, and glassy. Officer Thompson testified that he administered a preliminary breath test that indicated that Mr. Neer's blood alcohol content was over the legal limit of .08%. Based on his experience and observations of Mr. Neer, Officer Thompson believed that Mr. Neer was impaired and placed him under arrest for driving while intoxicated. Officer Thompson testified that he transported Mr. Neer to the police...