Riley v. Revenue

• Decision Date: 02 October 2012
• Docket Number: No. WD 73956.,WD 73956.
• Citation: 378 S.W.3d 432
• Parties: Sless Shaleen RILEY, Appellant, v. DIRECTOR OF REVENUE, Respondent.
• Court: Missouri Court of Appeals

378 S.W.3d 432

Sless Shaleen RILEY, Appellant,

v.DIRECTOR OF REVENUE, Respondent.

No. WD 73956.

Missouri Court of Appeals,

Western District.

Oct. 2, 2012.

Danieal H. Miller and Bradley H. Lockenvitz, Columbia, MO, for Appellant.

Chris Koster, Attorney General, Jennifer A. Wideman, Assistant Attorney General, Jefferson City, MO, for Respondent.

Before Special Division: ZEL M. FISCHER, Presiding Judge, and MARK D. PFEIFFER and GARY D. WITT, Judges.

MARK D. PFEIFFER, Judge.

Sless Shaleen Riley (“Riley”) appeals from the judgment of the Circuit Court of Johnson County, Missouri (“trial court”), upholding the Director of Revenue's (“Director”) administrative revocation of Riley's driving privileges. Riley contends that the trial court's judgment is not supported by substantial evidence of Riley's blood alcohol level because the blood test results relied upon by the trial court were procured in violation of section 577.041¹—specifically, although Riley requested the opportunity to consult with an attorney prior to submitting to the chemical test of her blood alcohol content (“BAC”), law enforcement denied her request. While we agree with Riley that evidence of the blood test results would have been inadmissible if objected to on this basis, Riley did not object to admission of the toxicology report, and the trial court was thus authorized to consider and rely upon the BAC results reflected in the toxicology report. Accordingly, we affirm the trial court's judgment.

Facts and Procedural History ²

At 1:42 a.m. on July 30, 2008, a deputy sheriff with the Johnson County, Missouri, Sheriff's Department responded to a dispatch that a female was driving erratically at the 1000 block of Northwest 40 Highway in Johnson County. Upon arrival, the deputy observed a black passenger vehicle strike both a parked vehicle and a nearby building.

The deputy exited his patrol car and approached the operator of the black passenger vehicle, later identified as Riley. The deputy smelled an odor of intoxicants emitting from the passenger compartment of the vehicle and also observed that Riley's eyes were watery, bloodshot, and glassy. Riley was not cooperative with the deputy and, eventually, the deputy applied pepper spray upon Riley, physically removed her from the vehicle, and cuffed her hands behind her back. Because Riley was combative and confrontational, the deputy did not conduct any standard field sobriety tests.

The deputy placed Riley in the patrol car to transport her to the Sheriff's Department. As the patrol car was leaving the scene, Riley stated that her chest hurt. The deputy drove directly to the Warrensburg Hospital emergency room. When the deputy escorted Riley inside the hospital, she told him that she wanted to contact her attorney. The deputy advised her that he was not going to allow her to contact her attorney at that time because she was at the hospital to receive medical treatment. She told the deputy several times that she wanted to speak to her attorney. The deputy advised her that once she was medically cleared, she could contact her attorney.

Subsequently, the emergency room physician examined Riley and concluded that she was in good medical condition and medically fit to be received into jail. Thereupon, at 3:25 a.m., the deputy read Riley the Implied Consent Warning. He explained to Riley that he wanted to obtain a blood sample for chemical testing of her BAC while they were at the hospital. Though Riley had previously requested an attorney, the deputy did not give Riley the opportunity to contact an attorney because, as he testified, she did not specifically re-assert her request to speak with an attorney after the Implied Consent Warning was read to her. Without the opportunity to receive advice of counsel, Riley acquiesced to the deputy's request for blood testing, and her blood was drawn at the hospital at 4:05 a.m. After the blood draw was processed and packaged, the deputy transported Riley to the Sheriff's Department. Testing reflected in a toxicology report later revealed that Riley's BAC was .119%, in excess of .08%.

At the Sheriff's Department, for the first time during the deputy's encounter with Riley, the deputy read Riley the Miranda³ warnings at 4:50 a.m. She told the deputy that she did not want to speak to him without an attorney present. The deputy then terminated the interview and took Riley to the Johnson County Jail where she was processed for the charges arising out of the early morning incident, including driving while intoxicated.

The deputy's Alcohol Influence Report was submitted to the Missouri Department of Revenue, whereupon the Director administratively revoked Riley's driver's license for excessive BAC. After an administrative hearing, Riley was found to have been arrested upon probable cause to believe she was driving a motor vehicle while the alcohol concentration in her blood was above the limit mandated by section 302.505, and the Director's administrative revocation was upheld.

Riley petitioned for a trial de novo with the trial court. During the trial de novo,the Director introduced several exhibits ⁴ into evidence, one of which was the toxicology report reflecting that Riley's BAC at the time of testing was .119%. Riley's counsel did not object to the toxicology report on the basis that her statutory right to counsel had been violated or, for that matter, any other foundational requirement of sections 577.020 to 577.041. Instead, Riley's counsel stipulated to the admission of the toxicology report.

The trial court's judgment upheld the Director's administrative revocation of Riley's driving privileges.⁵

Riley timely appeals.

Standard of Review

The standard of review to be applied to an appeal from a trial court's judgment in a driver's license revocation case under section 302.535 is that of Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). White v. Dir. of Revenue, 321 S.W.3d 298, 307–08 (Mo. banc 2010). We will affirm the trial court's judgment unless there is no substantial evidence to support it, it is against the weight of the evidence, it erroneously declares the law, or it erroneously applies the law. Id. (citing Murphy, 536 S.W.2d at 32). “In reviewing a particular issue that is contested, the nature of the appellate court's review is directed by whether the matter contested is a question of fact or law.” Id. at 308. “When the facts relevant to an issue are contested, the reviewing court defers to the trial court's assessment of the evidence.” Id.

Analysis

In Riley's sole point on appeal, Riley argues that the trial court erred in sustaining the administrative revocation of her driving privileges because the trial court's ruling was not based upon sufficient evidence.

To prevail on a challenge to the Director's administrative revocation of a driver's license pursuant to section 302.505, the Director bore the burden to prove by a preponderance of the evidence that: (1) probable cause existed for the arrest, and (2) Riley's blood alcohol level was eight-hundredths of one percent or more by weight. § 302.505.1; Grafeman v. Dir. of Revenue, 344 S.W.3d 861, 863 (Mo.App. W.D.2011). On appeal, Riley does not challenge the probable cause determination. Rather, Riley challenges the sufficiency of competent evidence of her blood alcohol level.

Riley argues that the trial court erred in upholding the administrative revocation of her driving privileges because the trial court's judgment relied upon BAC evidence ( i.e., the toxicology report) that was not obtained in compliance with the foundational requirements of sections 577.020 to 577.041. Specifically, Riley argues that this evidence was obtained in violation of her statutory right to consult counsel prior to submitting to a BAC test. Thus, the issues of this appeal are two-fold: (1) was the evidence of Riley's BAC obtained in violation of her statutory right to consult counsel prior to submitting to a BAC test and, thus, inadmissible? and (2) even if this evidence was properly excludable, once admitted without objection, may the evidence be considered by the trial court in arriving at its judgment?

Section 577.037

“Section 577.037, which is part of Missouri's Implied Consent Law (sections 577.020 through 577.041), governs the admissibility of chemical test results to establish a driver's [blood alcohol content] in license suspension or revocation proceedings under Chapter 302.” Murphy v. Dir. of Revenue, 170 S.W.3d 507, 512 (Mo.App. W.D.2005). Section 577.037.1 provides in pertinent part:

[I]n any license suspension or revocation proceeding pursuant to the provisions of chapter 302 arising out of acts alleged to have been committed by any person while driving a motor vehicle while in an intoxicated condition, the amount of alcohol in the person's blood at the time of the act alleged as shown by any chemical analysis of the person's blood, breath, saliva or urine is admissible in evidence.... If there was eight-hundredths of one percent or more by weight of alcohol in the person's blood, this shall be prima facie evidence that the person was intoxicated at the time the specimen was taken.

(Emphasis added.) This broad declaration of admissibility of the BAC test results in proceedings under Chapter 302 is narrowed by section 577.037.4:

A chemical analysis of a person's breath, blood, saliva or urine, in order to give rise to the presumption or to have the effect provided for in subsection 1 of this section, shall have been performed as provided in sections 577.020 to 577.041 and in accordance with methods and standards approved by the state department of health and senior services.

(Emphasis added.)

In Reed v. Director of Revenue, 184 S.W.3d 564, 568 (Mo. banc 2006), the court concluded: “A failure to comply with the provisions of sections 577.020 to 577.041 means that the chemical analysis is not admissible in civil proceedings to suspend or revoke a driver's license.” (Emphasis added.)

Missouri's...