Reed v. Director of Revenue, No. 26517 (MO 8/3/2005), 26517

CourtUnited States State Supreme Court of Missouri
PartiesNICHOLAS B. REED, Plaintiff-Respondent, v. DIRECTOR OF REVENUE, STATE OF MISSOURI, Defendant-Appellant.
Docket NumberNo. 26517,26517
Decision Date03 August 2005

Page 1

NICHOLAS B. REED, Plaintiff-Respondent,
No. 26517
Court of Appeals of Missouri, Southern District, Division Two.
August 3, 2005

Appeal from the Circuit Court of Phelps County, Honorable Ralph J. Haslag, Associate Circuit Judge.

Jeremiah W. (Jay) Nixon, Atty. Gen.; James A. Chenault III, Special Asst. Atty. Gen. of Jefferson City, MO, for Appellant's.

Larry A. Reed of St. Louis, MO, for Respondent's.

Jeffrey W. Bates, Chief Judge.

The driving privileges of Nicholas Reed ("Reed") were administratively suspended by the Director of Revenue ("Director") in February, 2004 because Reed was found to have a blood alcohol level of .136% after he was arrested on charges of driving while intoxicated and careless and imprudent driving. Reed requested a trial de novo pursuant to § 302.535, and the trial court entered judgment in Reed's favor.1 After considering the undisputed facts, the trial court reinstated Reed's driving privileges because "the arrest of [Reed] was not valid under Missouri statutes." We reverse the trial court's judgment and remand the case for further proceedings.

I. Statement of Facts and Procedural History

At 6:14 a.m. on December 20, 2003, Sergeant Mark Reynolds of the Missouri Highway Patrol ("Sgt. Reynolds") was eastbound on Becca Drive in Rolla, Missouri. Just south of the intersection of Becca Drive and Rolla Street, Sgt. Reynolds saw a 1999 Dodge Ram pickup truck "backed off into the ditch with its emergency flashers activated." The front half of the truck was blocking the southbound lane. The vehicle was unoccupied and appeared to have been there for some time because the engine compartment was cold, and much of the vehicle's surface was covered with frost.

Sgt. Reynolds contacted a Rolla wrecker service, C & C Towing ("C & C"), to remove the truck from the roadway. C & C advised that it had just received a call from the vehicle's owner, who stated that he had "wrecked his truck somewhere on Rolla Street." The owner had asked C & C to tow the vehicle to 1413 Commercial Drive in Rolla. At Sgt. Reynolds' request, the Rolla Police Department sent an officer to that address to pick up the vehicle's owner and return him to the scene.

At 6:30 a.m., a Rolla police officer arrived at the scene with Reed, who was the truck's owner. When Sgt. Reynolds asked Reed what happened, he said, "I meant to turn at Lanning Lane and go across but missed it. I was turning around and backed off here." This incident happened at approximately 3:00 a.m., and it took Reed two hours to walk home.

While Reed was speaking, Sgt. Reynolds smelled the odor of intoxicants about Reed's person. His eyes were bloodshot and glassy, and his speech was somewhat slurred. Reed denied that he had drunk any alcohol since backing his vehicle into the ditch, but he admitted he had consumed four or five beers between 11:00 p.m. and 1:00 a.m.

Sgt. Reynolds then administered a series of three field sobriety tests to Reed. He was unable to successfully complete any of the tests. Reed also submitted to a portable breathalyzer test. The result was positive, indicating a blood alcohol level greater than .08%. At 6:46 a.m., Reed was placed under arrest for driving while intoxicated and careless and imprudent driving.

Reed was transported to the Phelps County Sheriff's Department and advised of his Miranda rights and his rights under Missouri's implied consent law.2 He consented to give a breath test, which was conducted at 7:04 a.m. using a DataMaster machine. The evidence ticket showed Reed's blood alcohol content was .136%. Sgt. Reynolds served Reed with a notice that his driving privileges were suspended. He was released on $885 bond on charges of driving while intoxicated and careless and imprudent driving.

In March 2004, the Director upheld the suspension of Reed's driving privileges after an administrative hearing was held. Thereafter, Reed filed a timely petition for trial de novo in the Circuit Court of Phelps County, Missouri, and the Director filed an answer in due course. The final paragraph of the Director's answer alleged that "[Reed] was arrested upon probable cause on or about December 20, 2003, in Phelps County, Missouri, and that [Reed] was operating a motor vehicle in the State of Missouri with a blood alcohol content exceeding the limits in § 302.500-302.540 RSMo; in further support of said response, see attached Exhibit `A'." Exhibit A contained 14 pages of records from the Missouri Drivers License Bureau ("License Bureau") that were properly certified pursuant to § 302.312. Because Exhibit A was attached to the Director's answer, the exhibit was a part of the Director's pleadings for all purposes. See Rule 55.12; HGS Homes, Inc. v. Kelly Residential Group, Inc., 948 S.W.2d 251, 255 (Mo. App. 1997).3

In June 2004, Reed filed a motion for judgment on the pleadings or alternative motion for summary judgment. The motion contained a section called "Statement of Undisputed Facts" that listed 17 paragraphs of factual statements. Although most of the facts in this section of Reed's motion were taken from the License Bureau's records attached to the Director's answer, paragraph 13 stated that "[a] copy of the traffic ticket for violation of 304.012, RSMo is attached to this Motion as Exhibit `1'." This traffic ticket, which charged Reed with careless and imprudent driving, was not mentioned anywhere in the parties' pleadings or included in Exhibit A as a part of the records attached to the Director's answer. In August 2004, the Director filed suggestions in opposition to Reed's motion. The Director's suggestions included 13 paragraphs of additional undisputed facts that she asked the judge to consider in ruling on the motion.

Reed's motion was taken up by the trial court in August 2004. At the beginning of the hearing, the following colloquy occurred among the court, Reed's attorney and the Director's attorney:

THE COURT: All right. I'll show all canons of judicial ethics have been complied with. Once again, this is summary judgment. And Mr. Garrabrant [Reed's attorney], I understand you're lead counsel, please advise me how you wish to proceed either with regard to the facts in issue or argument at this time.

MR. GARRABRANT: Judge, I think that the facts, as they pertain to the pertinent issues that we want to argue and show for this motion, are agreed to. The Director has filed suggestions in opposition to our motion, which the Court has seen today, and I have seen for the first time today. But I have no problems with those facts being before the Court as far as this motion is concerned. I think that the — as we discussed earlier off the record, the major issue is going to be compliance with Section 577.039. And that is whether the officer involved actually arrested the Petitioner within one and one-half hours of the alleged operation of a motor vehicle while intoxicated.

THE COURT: Okay. Would you agree, Mr. Cox [the Director's attorney], the statement of undisputed facts that are set forth in Plaintiff's motion? The Court can look at those facts as undisputed for purposes of making a ruling in this case?

MR. COX: Yes, Judge, and I'd ask that you look at our facts. I think they're pretty much the same, and our suggestions.

THE COURT: Okay. All right. Let's go directly then to the argument I'm allowing ....

Reed argued that his driving privileges should be reinstated because he was arrested without a warrant more than one and one-half hours after the claimed violation occurred. According to Reed, this made his arrest invalid pursuant to § 577.039. As a result of this illegal arrest, Reed contended Sgt. Reynolds lacked probable cause to arrest Reed, and it also rendered his blood alcohol test results inadmissible. In response, the Director argued that § 577.039 was inapplicable because Reed left the scene of an accident, and, in any event, the exclusionary rule does not apply in a civil action to suspend or revoke a person's driving privileges. The trial court ruled in Reed's favor and reinstated his driving privileges because "the arrest of [Reed] was not valid under Missouri statutes. The [Director] did not present any fact or legal authority that would avoid this conclusion." This appeal followed.

Director presents two points for decision. In Point I, the Director contends the judgment should be reversed because Reed was lawfully arrested and his breath test result was lawfully obtained. In Point II, she argues the trial court misapplied the law...

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