Roesing v. Dir. Revenue

• Decision Date: 13 March 2018
• Docket Number: WD80585
• Parties: JEREME J. ROESING, Appellant, v. DIRECTOR OF REVENUE, Respondent.
• Court: Missouri Court of Appeals

JEREME J. ROESING, Appellant,
v.
DIRECTOR OF REVENUE, Respondent.

WD80585

Missouri Court of Appeals Western District

March 13, 2018

Appeal from the Circuit Court of Jackson County, Missouri
The Honorable Robert L. Trout, Judge

Before Special Division: James E. Welsh, Presiding Judge, Cynthia L. Martin, Judge and Gary D. Witt, Judge

Jereme Roesing ("Roesing") appeals from a trial court judgment which sustained the Director of Revenue's ("Director") revocation of his driving privileges. Roesing argues that he was not afforded the statutory right to attempt to contact counsel after being read the implied consent law because he was not allowed to speak to his attorney in private. We affirm.

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Factual and Procedural Background

On May 1, 2016, Roesing was arrested on suspicion of driving while intoxicated following a traffic stop. He was transported to the Lee's Summit Police Department where Officer Jordan Clapp ("Officer Clapp") read him the implied consent law.¹ Roesing requested to speak with an attorney. Officer Clapp permitted Roesing to use his personal cellular phone to attempt to contact an attorney. Roesing successfully reached an attorney. Approximately one minute into the call, Roesing handed his phone to Officer Clapp. The attorney told Officer Clapp that he wanted to speak with Roesing in private. Officer Clapp advised that although it might be possible to arrange for Roesing to speak with his attorney in another room, the discussion would not be private because every room in the detention facility was audio and video recorded. Officer Clapp returned the phone to Roesing. Roesing continued the telephone conversation with his attorney in Officer Clapp's presence. Officer Clapp was standing three to four feet from Roesing and could hear what Roesing was saying during the call, but could not hear what Roesing's attorney was saying.

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After twenty minutes had passed following Roesing's request to speak with an attorney, Officer Clapp again read Roesing the implied consent law. Roesing expressly refused to submit to a chemical test.

The Director revoked Roesing's driving privileges for one year pursuant to section 577.041.² Roesing filed a petition for review of his driver's license revocation with the Jackson County Circuit Court pursuant to section 577.041.4.³ Following an evidentiary hearing, the trial court entered its judgment ("Judgment") sustaining the revocation of Roesing's driving privileges.

Roesing timely filed this appeal.

Standard of Review

We review a trial court's judgment in a "license suspension or revocation case like any other court-tried civil case." Johnson v. Dir. of Revenue, 411 S.W.3d 878, 881 (Mo. App. S.D. 2013). "In appeals from a court-tried civil case, the trial court's judgment will be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law." White v. Dir. of Revenue, 321

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S.W.3d 298, 307-08 (Mo. banc 2010). "A legal question of statutory interpretation [] is reviewed de novo." Akins v. Dir. of Revenue, 303 S.W.3d 563, 564 (Mo. banc 2010) (citation omitted).

Analysis

Roesing raises a single point on appeal. Roesing argues that his statutory right to counsel was deprived because Officer Clapp refused to allow him to speak with his attorney in private; his phone call with counsel was videotaped and audio recorded; and because Officer Clapp stood three feet from him permitting Officer Clapp to listen to what Roesing said during the call. Roesing thus argues that the Director did not sustain his burden to establish that Roesing refused to submit to chemical testing, an essential element that must be found to sustain the Director's revocation of Roesing's license.

In a section 577.041.4 proceeding to review the Director's revocation of a license based on the refusal to submit to a chemical test, the circuit court is directed to determine only:

(1) Whether or not the person was arrested or stopped;

(2) Whether or not the officer had:

(a) Reasonable grounds to believe that the person was driving a motor vehicle in an intoxicated or drugged condition; or

(b) Reasonable grounds to believe that the person stopped, being under the age of twenty-one years, was driving a motor vehicle with a blood alcohol content of two-hundredths of one percent or more by weight; or

(c) Reasonable grounds to believe that the person stopped, being under the age of twenty-one years, was committing a violation of the traffic laws of the state, or political subdivision of the state,

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and such officer had reasonable grounds to believe, after making such stop, that the person had a blood alcohol content of two-hundredths of one percent or greater; and

(3) Whether or not the person refused to submit to the test.

Section 577.041.4.⁴ See White, 255 S.W.3d at 577 ("At the hearing [provided for by section 577.041.4], the court shall determine only: (1) whether or not the person was arrested; (2) whether or not the officer had reasonable grounds to believe the person was driving while intoxicated; and (3) whether or not the person refused to submit to the test.") (citing section 577.041.4). "'The Director has the burden of establishing each element [set forth in section 577.041.4] by a preponderance of the evidence.'" White, 255 S.W.3d at 577 (quoting Foster v. Dir. of Revenue, 186 S.W.3d 928, 930 (Mo. App. S.D. 2006)). "If the court determines any issue not to be in the affirmative, the court shall order the director to reinstate the license or permit to drive." Section 577.041.5.⁵

Roesing challenges only whether the Director established the third statutory element--that Roesing refused to submit to a chemical test. Though Roesing concedes that he expressly refused to submit to a chemical test, he argues his refusal was not valid because he was not allowed to speak with an attorney in private. "Resolution of this case depends on the interpretation of section 577.041.1." Norris v. Dir. of Revenue, 304 S.W.3d 724 (Mo. banc 2010).

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Section 577.041.1 provides in pertinent part as follows:

If a person when requested to submit to any test allowed pursuant to section 577.020 requests to speak to an attorney,⁶ the person shall be granted twenty minutes in which to attempt to contact an attorney. If upon the completion of the twenty-minute period the person continues to refuse to submit to any test, it shall be deemed a refusal.⁷

"[T]here is no constitutional right to speak with an attorney prior to deciding whether to submit to a breath test."⁸ White, 255 S.W.3d at 578 (citing State v. Foster, 959 S.W.2d 143, 146 (Mo. App. S.D. 1998)). "Section 577.041.1 does provide a limited statutory right [to attempt] to confer with an attorney prior to making that decision."⁹ Id. "The purpose of this provision is to provide a person with a reasonable opportunity to contact an attorney to make an informed decision as to whether to submit to a chemical test." Id. (citation omitted) (emphasis added). "'[T]he statutory twenty[-]minute requirement has been deemed by the courts to be the definition of 'reasonable opportunity[.]''" Id. (quoting Christensen v. Dir. of Revenue, 128 S.W.3d 171, 175 (Mo. App. S.D. 2004) (emphasis added). This accepted definition of "reasonable opportunity" is wholly consistent with the plain language of section 577.041.1, which provides that "[i]f upon the

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completion of the twenty-minute period the person continues to refuse to submit to any test, it shall be deemed a refusal." (Emphasis added.) Our Supreme Court has thus consistently held that section 577.041.1 is not violated unless "an officer fails to allow a driver, upon request, [twenty] minutes to attempt to contact an attorney."¹⁰ Norris, 304 S.W.3d at 726.

Roesing requested the opportunity to speak with an attorney after being read the informed consent notice. Roesing was granted twenty minutes after that request within which to attempt to contact an attorney. Pursuant to White, Roesing was given the reasonable opportunity to attempt to contact an attorney required by section 577.041.1. Roesing subsequently refused to submit to chemical testing. Section 577.041.1 was not violated, and Roesing's refusal was valid.

Roesing argues that we should broaden White's definition of "reasonable opportunity to contact an attorney" to require not just the statutory requirement of twenty minutes to attempt to contact an attorney, but also the right to confer privately with an

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attorney. The plain language of section 577.041.1 does not afford a person the right to confer privately with an attorney if the attempt to contact an attorney is successful. "When the language of a statute is clear, the court must give effect to the language as written." Norris, 304 S.W.3d at 726. We have no authority to engraft upon the limited statutory right to attempt to contact counsel described in section 577.041.1 a right to private consultation with counsel if the attempt to contact is successful. See Pavlica v. Dir. of Revenue, 71 S.W.3d 186, 189 (Mo. App. W.D. 2002) ("Where the legislative intent is made evident by giving the language employed in the statute its plain and ordinary meaning, we are without authority to read into the statute an intent, which is contrary thereto.") (citation omitted). We reject Roesing's invitation to broaden the definition of "reasonable opportunity to contact" an attorney beyond the definition articulated in White--a definition that is consistent with the plain language of section 577.041.1

It is uncontested that Roesing was allowed twenty-minutes to attempt to contact an attorney after he made the request to do so. Section 577.041.1 was not violated. The purpose of section 577.041.1 was met in this case, just as it is "met when [a] person attempts to contact an attorney unsuccessfully and the twenty-minute statutory period expires, or the driver abandons the attempt." White, 255 S.W.3d at 578. If it is sufficient to...