Reed v. Director of Revenue, No. 26517 (MO 7/15/2005)

• Decision Date: 15 July 2005
• Docket Number: No. 26517,26517
• Parties: NICHOLAS B. REED, Plaintiff-Respondent, v. DIRECTOR OF REVENUE, STATE OF MISSOURI, Defendant-Appellant.
• Court: Missouri Supreme Court

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NICHOLAS B. REED, Plaintiff-Respondent, v. DIRECTOR OF REVENUE, STATE OF MISSOURI, Defendant-Appellant.

No. 26517

Court of Appeals of Missouri, Southern District, Division Two.

July 15, 2005

Appeal from the Circuit Court of Phelps County, The 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.

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

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 on the pleadings 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 case is remanded to the trial court with directions to enter a judgment reinstating the suspension of Reed's driving privileges.

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. After the Director filed an answer to the petition, the parties agreed to submit the case to the trial judge via Reed's motion for judgment on the pleadings because the relevant facts, set out above, were not in dispute.

In the trial court, 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 because it was irrelevant in this civil proceeding whether Reed was lawfully arrested pursuant to § 577.039. As Director's second point is dispositive, we limit our discussion to this issue.

II. Standard of Review

We review the trial court's judgment after a trial de novo pursuant to the familiar standards established by Rule 84.13(d) and Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).³ Ruth v. Director of Revenue, 143 S.W.3d 741, 744 (Mo. App. 2004). "This Court 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." Verdoorn v. Director of Revenue, 119 S.W.3d 543, 545 (Mo. banc 2003). In the case at bar, the facts were undisputed. The trial court's judgment stemmed from its application of the law to these uncontroverted facts. As our Supreme Court pointed out in Hinnah v. Director of Revenue, 77 S.W.3d 616 (Mo. banc 2002), "[i]f the evidence is uncontroverted or admitted so that the real issue is a legal one as to the legal effect of the evidence, then there is no need to defer to the trial court's judgment." Id. at 620; see also Covert v. Fisher, 151 S.W.3d 70, 73 (Mo. App. 2004); Vernon v. Director of Revenue, 142 S.W.3d 905, 909 (Mo. App. 2004). Thus, we cannot affirm the trial court's judgment "by merely disregarding all uncontradicted evidence supporting Director's contention that Director established a prima facie case by a preponderance of the evidence." Green v. Director of Revenue, 148 S.W.3d 892, 894 (Mo. App. 2004); Matthews v. Director of Revenue, 938 S.W.2d 279, 282 (Mo. App. 1997).

III. Discussion and Decision

The Department of Revenue is authorized to suspend the driver's license of any person "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 eight-hundredths of one percent or more by weight...." § 302.505.1. After an adverse decision from the Department of Revenue, a driver may file a petition for a trial de novo in circuit court. § 302.535.1; Verdoorn, 119 S.W.3d at 545. At the trial de novo, "the director must initially present evidence to establish probable cause for the arrest and the driver's blood alcohol level of [.08]% or greater. This evidence creates a presumption that the driver was intoxicated. The driver is then entitled to rebut the director's prima facie case with evidence that his blood alcohol content did not exceed the legal limit." Walker v. Director of Revenue, 137 S.W.3d 444, 446 (Mo. banc 2004).

Here, the uncontroverted facts before the trial court were sufficient to establish the Director's prima facie case. Probable cause to arrest a driver for an alcohol-related violation exists "when a police officer observes an unusual or illegal operation of a motor vehicle and observes indicia of intoxication upon coming into contact with the motorist." Brown v. Director of Revenue, 85 S.W.3d 1, 4 (Mo. banc 2002). Sgt. Reynolds' discovery of Reed's truck, which had been backed into a ditch so as to impede traffic and render the vehicle inoperable, certainly qualifies as the unusual operation of a motor vehicle. When Sgt. Reynolds came into contact with Reed, the officer observed indicia of intoxication because: (1) he smelled the odor of intoxicants about Reed's person; (2) Reed's eyes were bloodshot and glassy; (3) his speech was somewhat slurred; (4) he admitted consuming four or five beers between 11:00 p.m. and 1:00 a.m.; (5) he failed three field sobriety tests; and (6) the results of the portable breathalyzer test were positive, indicating a blood alcohol concentration greater than .08%. Based on this information, Sgt. Reynolds arrested Reed for driving while intoxicated. Thereafter, Reed consented to submit to a breathalyzer test, which showed his blood alcohol concentration was .136%. The foregoing evidence was sufficient to create a presumption of intoxication, which Reed failed to rebut.⁴

As is evident from the judgment, however, the trial court reinstated Reed's driving privileges because the court concluded Reed's arrest was invalid. The trial court appears to have accepted Reed's argument that the arrest contravened the provisions of § 577.039 because he was not taken into custody within one and one-half hours after he backed his truck into the...