Peters v. Dir. of Revenue

• Court: Court of Appeal of Missouri (US)
• Writing for the Court: Garrison; James K. Prewitt; In Chancellor, the appellate court reversed the circuit court's judgment reinstating Chancellor's driving privileges even though no field sobriety tests had been performed, based on the officer's other observations of Chan
• Citation: 35 S.W.3d 891
• Decision Date: 23 January 2001
• Parties: (Mo.App. S.D. 2001) Richard S. Peters, Petitioner-Respondent, v. Director of Revenue, Respondent-Appellant. 23593 0

35 S.W.3d 891 (Mo.App. S.D. 2001) Richard S. Peters, Petitioner-Respondent,
v.
Director of Revenue, Respondent-Appellant. 23593 Missouri Court of Appeals Southern District 01/23/2001

Appeal From: Circuit Court of Taney County, Hon. Michael E. Merrell

Counsel for Appellant: Stacy L. Anderson

Counsel for Respondent: David S. Akers

Opinion Summary: None

Garrison, J., and Mitchell, S.J., concur.

James K. Prewitt, Judge

The Director of Revenue appeals from a decision of the Circuit Court of Taney County, Missouri that set aside the Director's revocation of Peters' driving privilege for driving with an alcohol concentration of at least .10%. At trial, the following evidence was presented:

At approximately one o'clock in the morning on March 30, 1999, Officer Ferrell Jeter of the Hollister police department was driving westbound on Missouri 76 highway, when he noticed an eastbound "Chevy" pickup truck travelling at what appeared to be a high rate of speed. Officer Jeter activated his radar, which confirmed that the truck was travelling at 47 miles per hour. The posted speed limit for that area was 35 miles per hour. Officer Jeter turned his patrol car around and stopped the pickup truck.

The driver of the pickup truck was Richard Peters. There were two other passengers in the vehicle. The spotlight on Officer Jeter's patrol car was directed towards the pickup truck, but other than that, the area was not well lit. Officer Jeter shone his flashlight on Peters. He noticed that Peters' eyes were watery and glassy, and that he smelled moderately of intoxicants. Officer Jeter did not notice any containers of intoxicants in the vehicle, but he asked Peters if he had been drinking. Peters admitted that he had consumed a pitcher of beer. Officer Jeter then asked Peters to step out of his pickup truck, and Peters complied.

Officer Jeter then performed the horizontal gaze nystagmus test, a field sobriety test. This test is performed by moving a stimulus, in this case, Officer Jeter's finger, in front of the subject's eyes while observing the eyes for any nystagmus, or involuntary jerking of the eye. Officer Jeter observed a nystagmus in each of Peters' eyes, giving Peters a score of five out of six points. A score of four or higher on the test indicates that the person tested is legally intoxicated. Officer Jeter also noted that Peters' eyes were not dilated, that his speech was coherent, and he was able to follow directions.

Officer Jeter did not perform any other field sobriety tests, such as the walk and turn test or the one-legged stand test, because the ground was sloped and because Peters told the officer that he had arthritis in his legs. Officer Jeter did observe Peters as he walked to the back of the police vehicle and noted that Peters' balance, walk, and turn were "fair" but "[no]t exactly sure-footed." ¹

Peters informed Officer Jeter that he did not feel that he was intoxicated, but he agreed to accompany Officer Jeter to the police department to take a breath analysis test. Peters testified that when the officer asked him to go to the station, he agreed to go because he "didn't figure [he] had much choice." He testified that he did not feel that he was free to say no and walk away. Before putting Peters in the backseat of the patrol car, Officer Jeter checked him for weapons, but testified that he did not tell Peters he was under arrest, handcuff him, or read him his Miranda rights at that time.

Officer Jeter gave one of Peters' passengers, Eddie Hough, the horizontal gaze nystagmus test and permitted him to drive Peters' vehicle to follow the officer to the police station. Hough testified that he had not been drinking because he is diabetic and was taking medications which his doctor informed him should not be combined with alcohol. Hough testified that Peters' hands were behind him when Officer Jeter placed Peters in the patrol car, but admitted that he did not actually see whether Peters was wearing handcuffs. Peters claims that he was handcuffed.

After arriving at the police station two to three minutes later, Officer Jeter gave Peters a breath analysis test. Officer Jeter testified that he had certification from the Department of Health ("DOH") to operate the Breathalyzer device, and that he performed the test according to DOH regulations. The test indicated that Peters' blood alcohol concentration ("BAC") was above .10 percent. ²

Officer Jeter then told Peters he was under arrest for driving while intoxicated. He advised Peters of his rights under the Missouri implied consent law, and requested to perform the test again. Officer Jeter testified that he observed Peters for the required fifteen-minute interval prior to administering the second exam to make sure that Peters did not ingest anything orally. Peters did not consume anything during that time period. Officer Jeter gave the test again, and it showed that Peters had a blood alcohol content above .10 %. Jeter issued Peters a citation for violating the Hollister, Missouri municipal ordinance prohibiting persons from driving while intoxicated.

Officer Jeter admitted on cross-examination that speeding is not necessarily a sign of intoxication. He testified that out of the eighty or more DWI arrests he had made, he had only waited to tell an individual he was under arrest for driving while intoxicated until after he administered an initial breath test on one other occasion.

Subsequent to Peters' arrest, the Director of Revenue notified Peters' of the Director's intent to revoke Peters' Missouri driver's license for a thirty-day period commencing July 6, 1999, under section 302.500, RSMo Supp. 1998. On July 1, 1999, pursuant to section 302.535, RSMo Supp. 1998, Peters filed a petition to review the revocation with the Circuit Court of Taney County. The court held a hearing on November 3, 1999. On November 16, 1999, the court set aside the revocation of Peters' driver's license. The Director of Revenue filed its notice of appeal on December 23, 1999. On February 25, 2000, this court dismissed the appeal for lack of jurisdiction as the appeal was taken from an order that was not a judgment. Judgment was entered on March 1, 2000. A subsequent notice of appeal from that judgement was filed on behalf of the Director of Revenue on April 7, 2000.

In its one point relied one, Appellant argues that the trial court erred in setting aside the Director's revocation of Peters' driver's license because its judgment was against the weight of the evidence in that the Director proved that the arresting officer had probable cause to arrest Peters at the time the arrest was made because Peters was speeding, he admitted to having drunk a pitcher of beer, his eyes were watery and glassy, he smelled of intoxicants, he failed the horizontal gaze nystagmus test, and he had a blood alcohol concentration of at least .10%.

Respondent counters that there was no error in the trial court's decision because the...