Nightengale v. Director of Revenue

• Decision Date: 21 March 2000
• Citation: 14 S.W.3d 267
• Parties: (Mo.App. W.D. 2000) Barbara M. Nightengale, Respondent v. Director of Revenue, State of Missouri, Appellant WD57358 0
• Court: Missouri Court of Appeals

14 S.W.3d 267 (Mo.App. W.D. 2000)

Barbara M. Nightengale, Respondent v. Director of Revenue, State of Missouri, Appellant

WD57358

Missouri Court of Appeals Western District

03/21/2000

Appeal From: Jackson County Circuit Court, Hon. Vernon Eugene Scoville, III

Counsel for Appellant: Evan J. Buchheim

Counsel for Respondent: John Brand Eskew

Opinion Summary: The Director of Revenue appeals the trial court's judgment ordering the reinstatement of the driving privileges of Barbara M. Nightengale after judicial review of her refusal to submit to chemical testing pursuant to section 577.041, RSMo Cum. Supp. 1998. The Director contends that the arresting officer's out-of-court statements made to the testifying officer should have been admitted to establish that the testifying officer had reasonable grounds to believe Ms. Nightengale was driving while in an intoxicated condition.

Division Two holds: The testifying officer's testimony as to the arresting officer's out-of-court statements that Ms. Nightengale was the driver he arrested for leaving the scene of an accident and that she was possibly under the influence of alcohol or drugs, even if admissible, did not establish that either officer had reasonable grounds to believe that Ms. Nightengale was driving in an intoxicated condition.

Robert G. Ulrich, Judge

The Director of Revenue, State of Missouri, appeals from the trial court's judgment ordering the reinstatement of the driving privileges of Barbara M. Nightengale after judicial review of her refusal to submit to chemical testing pursuant to section 577.041. ¹ The Director contends that the out-of-court statements of the arresting officer that Ms. Nightengale "possibly" operated a motor vehicle while intoxicated made to the testifying police officer, who did not observe Ms. Nightengale drive a motor vehicle, should have been admitted to establish that the testifying officer had reasonable grounds to believe Ms. Nightengale was driving a motor vehicle while in an intoxicated condition. The Director claims the testimony was not hearsay because it was not offered for its truth but to explain the basis for the testifying officer's belief that Ms. Nightengale had operated a motor vehicle while intoxicated, prompting him to request that she take the chemical test. The judgment of the trial court is affirmed.

Facts

On July 9, 1998, an Independence police officer, Officer Roswarren, was dispatched to investigate a hit and run accident. When the officer arrived, he found that the driver of the vehicle had left the scene of the accident. He subsequently located and arrested Ms. Nightengale for leaving the scene of the accident and transported her to the City's detention center after determining there was a possibility that she was under the influence of alcohol and or drugs. Officer Roswarren then called another officer, Officer Donald DeBoard, to the detention center to process Ms. Nightengale. Office DeBoard was not involved in the investigation prior to Ms. Nightengale's arrest and had no personal knowledge of the events that resulted in her arrest. At the detention center, Officer DeBoard administered field sobriety tests. After Ms. Nightengale failed the field sobriety tests, Officer DeBoard read Ms. Nightengale her Miranda rights and the Implied Consent Law Warning and requested that she submit to the applicable chemical test. Ms. Nightengale refused to take the test. Upon her refusal, Ms. Nightengale's driver's license was revoked for one year pursuant to section 577.041.

Ms. Nightengale filed an application for a hearing pursuant to section 577.041.4. During the hearing, the Director presented the testimony of Officer DeBoard, the officer who encountered Ms. Nightengale only after she had been transported to the detention center. Officer Roswarren, the officer who initially located and arrested Ms. Nightengale and transported her to the detention center, did not testify at the hearing nor was his report introduced as evidence under an exception to the hearsay rule. During direct examination, Officer DeBoard was asked what Officer Roswarren told him about the accident involving Ms. Nightengale. Defense counsel objected to the question on the grounds that response to the question would be inadmissible hearsay. After the parties filed briefs on the matter, the trial court found Officer Roswarren's statements to Office DeBoard were inadmissible hearsay and that the Director had not established reasonable grounds for the arresting officer to believe that Ms. Nightengale was driving a motor vehicle while in an intoxicated condition. Section 577.041. The trial court ordered the reinstatement of Ms. Nightengale's driving privileges, and this appeal followed.

Point on...