Roberts v. Wilson
| Decision Date | 25 June 2002 |
| Docket Number | No. WD 60096.,WD 60096. |
| Citation | 97 S.W.3d 487 |
| Parties | David Ross ROBERTS, Respondent, v. Quentin WILSON, Director of Revenue, Appellant. |
| Court | Missouri Court of Appeals |
Jeremiah W. (Jay) Nixon, Attorney General, Karen P. Hess, Assistant Attorney General, Jefferson City, for appellant.
John R. Cullom, Kansas City, for respondent.
Before ELLIS, P.J., and EDWIN H. SMITH and HOWARD, JJ.
The Director of Revenue (Director) appeals from the judgment of the circuit court setting aside the Director's revocation, pursuant to § 577.041,1 of the driver's license of the respondent, David R. Roberts, for the respondent's refusal to submit to a chemical test authorized by § 577.020, which was requested of him after his arrest for driving while intoxicated (DWI).
In his sole point on appeal, the Director claims that the trial court erred in granting the respondent's motion for "directed verdict" at the close of the Director's evidence and setting aside the revocation of the respondent's driver's license because the Director made a prima facie case for revocation under § 577.041, which was not rebutted.
We reverse and remand.
At approximately 3:00 a.m. on January 20, 2001, Detective Beverly Caver of the Kansas City, Missouri, Police Department was dispatched to the scene of a disturbance at a tavern. Based on the description she was given of the vehicle whose driver was reported as having been involved in the disturbance, she stopped a vehicle matching that description near the scene of the disturbance.
When Detective Caver approached the stopped vehicle and made contact with the driver, whom she later identified as the respondent, she could smell the strong odor of an alcoholic beverage, prompting her to ask him to step out of his vehicle, which he did. After the respondent had stepped out of his vehicle as requested, Detective Caver noticed that he had a difficult time standing and walking, that he had very poor balance and was stumbling, and that his speech was slurred. Given her initial observations of the respondent's condition and her conclusion that he would not be able to perform the standard field sobriety tests, Detective Caver did not ask him to perform any field sobriety tests, other than the gaze nystagmus test.2 Based upon her observations and experience, Detective Caver determined that the respondent was intoxicated and placed him under arrest for DWI.
After being arrested, the respondent was transported to the station of the "South Patrol Division." There, he came into contact with Officer Mark Fugate, the duty officer qualified to administer the Breathalyzer test. Officer Fugate observed that the respondent was "unsteady on his feet" and "had difficulty maintaining his balance." He also detected "a strong odor of intoxicating beverage upon his breath" and that his speech "was somewhat slurred and incoherent." After removing the respondent to the room used for performing Breathalyzer tests, Officer Fugate advised him of the provisions of the Missouri Implied Consent Law (ICL) by reading them verbatim to the respondent. Specifically, Officer Fugate informed the respondent that he had been arrested for DWI, that he was requesting him to submit to a chemical test of his breath, that his refusal to take the test would result in the immediate one-year revocation of his driver's license, and that evidence of his refusal to take the test could be used against him in a prosecution in a court of law.
After advising the respondent of the provisions of the ICL, Officer Fugate asked the respondent whether he would take the Breathalyzer test. The respondent stated that he would not take the test. Based upon this response, Officer Fugate checked the box on the Alcohol Influence Report (AIR), which was admitted in evidence, signifying that the respondent had refused the test and further indicated that the refusal occurred at 4:56 a.m. Within seconds after indicating that he would not take the test as requested, the respondent advised Officer. Fugate that he wanted to contact an attorney, which Officer Fugate noted on the AIR as also occurring at 4:56 a.m. In response, Officer Fugate told the respondent that "he — we would provide him a telephone, telephone books, any time — you know, anything that we could do to assist him to use the telephone, that we would provide him adequate time to contact an attorney or anyone that he would like to consult for advice." Although the respondent was provided with a telephone and telephone directories as promised, after looking through the directories provided, he stated that he was not going to make any phone calls.
Pursuant to § 577.041.3, the respondent's driver's license was revoked by the Director for his refusal to submit to the Breathalyzer test requested by Officer Fugate. Pursuant to § 577.041.4, the respondent appealed his revocation to the Circuit Court of Jackson County. The appeal was heard by the Honorable Anthony Romano on April 13, 2001. At the hearing, both Detective Caver and Officer Fugate testified for the Director. Officer Fugate was questioned on direct, cross-examination and redirect examination about the timing of the respondent's refusal to take the test and his request to contact an attorney. Twice, Officer Fugate was asked if the respondent refused the test before he asked to contact an attorney, and Officer Fugate responded both times by saying "Yes, he did." Then Officer Fugate explained:
He was given the opportunity to take the Breathalyzer test. He refused. I acknowledged that he had made a refusal, and I put it in the computer that he was taking refusal. Then he asked for an attorney.
At that point, to clear up any confusion on the issue, the trial court conducted its own examination of Officer Fugate:
Q. Officer, I'm getting the feeling these two — the no and the attorney request were almost simultaneously; am I wrong?
A. They occurred very quickly, Your Honor. If the — The way I normally do things, if an individual asks for an attorney, if they say then I won't do the refusal. I will allow them time to contact an attorney before I do anything else. But if they make the statement: "No. I will not take the test," and they do not ask for an attorney at that time, then I automatically will go into the refusal portion of the test.
. . .
Q. I think it's significant, and that's why I'm trying to determine —
A. Right.
Q. — how much time elapsed from the time he said no and you pushed the [refusal] button and he said, "I want an attorney."
A. Okay. It would be hard to recall that time frame. It would have been within a minute, based upon the times indicated on the report and on the machine.
Q. Okay.
A. It could have been 20 seconds; it could have been 40 seconds. That, I don't recall, Your Honor.
Q. And, if I understand you, you said his speech was pretty slurred or slow at that time?
A. Yes.
At the close of the appellant's evidence, the respondent moved for a "directed verdict," alleging that the respondent's refusal to take the chemical test requested was conditioned upon a request to contact an attorney, which was not a refusal under § 577.041.1 requiring revocation of his driver's license. The trial court took the matter under advisement. On April 23, 2001, the court, finding "the issues specified in Section 577.041 R.S.Mo, not to be in the affirmative," entered its judgment ordering the Director to reinstate the respondent's driving privileges.
This appeal follows.
In determining our standard of review, we note that the Director claims error with respect to the trial court's granting of the respondent's motion for "directed verdict" at the close of the Director's evidence, which resulted in the setting aside of the revocation of the respondent's driver's license. In that regard, the record discloses that counsel for the respondent did, in fact, denominate his motion at the close of the Director's case as one for a directed verdict, which the trial court sustained. Of course, in a court-tried case, such as ours, there is no verdict to direct. Kamil, Decker & Co., P.C. v. SMC Properties, Inc., 998 S.W.2d 818, 819 (Mo.App.1999). A motion at the close of the plaintiffs evidence in a court-tried case is a "motion for a judgment on the grounds that upon the facts and the law the plaintiff is not entitled to relief." Rule 73.01(b). Thus, regardless of how the motion was denominated by respondent's counsel at trial, we must treat it as a motion submitting the issues on the merits, requiring us to review under the standard enunciated in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Kamil, 998 S.W.2d at 819; Testerman v. Dir. of Revenue, State of Mo., 31 S.W.3d 473, 475 (Mo.App.2000). As such, we must affirm the judgment of the trial court setting aside the revocation of the respondent's driver's license by the Director, unless we find that there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Testeman, 31 S.W.3d at 475.
I.
In his sole point on appeal, the Director claims that the trial court erred in setting aside the Director's revocation of the respondent's driver's license because the Director made a prima facie case for revocation under § 577.041.3, which was not rebutted. Specifically, the Director claims that the evidence established that: "(1) the arresting officer had reasonable grounds to believe that [the respondent] had been driving a motor vehicle in an intoxicated condition; (2) the officer sufficiently informed [the respondent] of the basis for requesting him to submit to a breath analysis test; and (3) [the respondent] refused to submit to a breath analysis test before he requested to speak to an attorney." We agree.
Pursuant to § 577.041.4, "[i]f a person's license has been revoked because of the person's...
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