Phelps v. Director of Revenue

• Decision Date: 12 June 2001
• Parties: (Mo.App. S.D. 2001) Amber E. Phelps, Respondent, v. Director of Revenue, Appellant. ED78134 0
• Court: Missouri Court of Appeals

47 S.W.3d 395 (Mo.App. S.D. 2001)

Amber E. Phelps, Respondent, v. Director of Revenue, Appellant.

ED78134

Missouri Court of Appeals Eastern District

06/12/2001

Appeal From: Circuit Court of St. Louis County, Hon. Colleen Dolan

Counsel for Appellant: Deborah A. Ledgerwood

Counsel for Respondent: Timothy F. Devereux

Opinion Summary: The Director of Revenue appeals from the trial court's judgment reinstating the driving privileges of Amber E. Phelps.

Division One holds: The Director presented a prima facie case for revocation the driver's privileges by showing that there was probable cause to arrest the driver for driving under the influence and that the alcohol concentration in her blood was .10 percent or greater. Once the Director proves the prima facie case, a heavy burden is placed on the driver to rebut the prima facie case by a preponderance of the evidence. The driver did not meet her burden of rebutting the prima facie case.

R. Dowd, Jr., P.J., and Teitelman, J., concur.

Mary Rhodes Russell, Judge

The Director of Revenue ("Director") appeals from the trial court's judgment reinstating the driving privileges of Amber E. Phelps ("Driver"). Director asserts that the trial court erred because, under section 302.505 RSMo 2000,¹ she presented uncontroverted evidence establishing a prima facie case for revocation of Driver's driving privileges. We agree and reverse and remand.

On July 23, 1999, at approximately 1:55 a.m., a Maryland Heights police officer ("Officer") pulled over a silver Mitsubishi Eclipse after he observed the car weave within its own lane, follow another car at close proximity, and fail to signal as it moved into a left turn lane and proceeded to turn left.

As Officer approached Driver, he noticed a strong odor of intoxicants on her breath, her eyes were watery and bloodshot, and her speech was mumbled and scratchy.

Based upon his observations, Officer asked Driver to perform various field sobriety tests and she consented. Officer administered six tests and Driver failed four of them. In addition, Driver admitted that she had begun drinking around midnight and stopped drinking about twenty minutes before being pulled over. After Driver refused to submit to a personal breath test, and based upon the totality of his observations and the tests previously performed, Officer arrested her for driving while intoxicated.

At the police station, Driver agreed to take a breath test. Officer observed Driver for the requisite fifteen minutes and then administered the test using the DataMaster machine. The test indicated that Driver had a .104 percent blood alcohol content ("BAC"). Director revoked Driver's driving privileges pursuant to section 302.505.² Thereafter, Driver filed a petition for trial de novo in St. Louis County Circuit Court.

At trial, Director called one witness. Officer testified about the events leading up to Driver's arrest as well as his administration of the breath test. Driver called no witnesses at trial.

The traffic commissioner ruled that Director failed to present credible evidence that Driver had a BAC of .10 percent or more while operating a motor vehicle. Upon Director's motion for rehearing, the circuit court adopted and confirmed the commissioner's findings. This appeal follows.

On appeal, Director alleges the trial court erred in setting aside revocation of Driver's driving privileges in that Director demonstrated that there was probable cause for arresting Driver, that she had a BAC of .10 percent or more by weight, and that Driver failed to rebut Director's evidence.

We will affirm the trial court's judgment unless there is no substantial evidence to support it, unless the decision is contrary to the weight of the evidence, or unless the trial court erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); Anderson v. Director of Revenue, 969 S.W.2d 899, 901 (Mo. App. 1998). We defer to the trial court's determinations regarding credibility. Prozorowski v. Director of Revenue, 12 S.W.3d 405, 408 (Mo. App. 2000).

Initially, Driver argues that while we must give deference to the trial court's determinations regarding the credibility of witnesses, we must assume that the trial court found that Officer was not credible. "[W]hen the evidence supporting revocation is uncontroverted and the trial court has not specifically found the director's witness incredible, appellate courts will not presume that the trial judge found a lack of credibility and will not affirm on that basis." Mathews v. Director of Revenue, 8 S.W.3d 237, 238 (Mo. App. 1999).

The trial court, in setting aside the revocation of Driver's driving privileges, stated that there was no credible evidence that Driver had a BAC of .10 percent or more while operating a motor vehicle. The trial court, however, did not specifically find Officer to be incredible. Moreover, the evidence supporting revocation was uncontroverted as Driver did not present any evidence rebutting Director's prima facie case. We, therefore, cannot presume a finding of lack of credibility.

Section 302.505 authorizes the suspension or revocation of a driver's license by Director for driving while intoxicated and provides, in pertinent part, as follows:

1. The department shall suspend or revoke the license of any person upon its determination that the person was arrested upon probable cause to believe such person was driving a motor vehicle while the alcohol concentration in the person's blood, breath, or urine was ten-hundredths of one percent or more by weight. . . .

Under this statute, Director has the burden of establishing a prima facie case for revocation of a driver's license by presenting evidence that at the time of the arrest: (1) there was probable cause for arresting Driver for driving under the influence, and (2) that the alcohol concentration in Driver's blood was .10 percent or more. Anderson, 969 S.W.2d at 901-02. Once Director has established a prima facie case, the burden shifts to Driver. This burden is a heavy one and requires that Driver present evidence to rebut the prima facie case by a preponderance of the evidence. Id. at 902.

As to the first element of Director's prima facie case, the uncontroverted evidence established that Officer had probable cause to believe Driver had been driving while intoxicated. Officer observed Driver's car weave within its own lane, follow another car at close proximity, and fail to signal as it moved into a left turn lane and as it proceeded to turn left. As he approached Driver, Officer noticed a strong odor of intoxicants on her breath, her eyes were watery and bloodshot, and her speech was mumbled and scratchy. Moreover, Driver performed six field sobriety tests and, in Officer's opinion, she failed four of them. Finally, Driver admitted that she had consumed alcohol that evening. We find this evidence is sufficient to support a finding that Officer had probable cause to arrest Driver.

We now turn to the second element of Director's prima facie case, whether the alcohol concentration in Driver's blood was .10 percent or more. Director sought to prove that Driver's BAC was over .10 percent by introducing a...