Rogers v. Director of Revenue

• Decision Date: 21 February 2006
• Docket Number: No. WD 65039.,WD 65039.
• Parties: Steven Mark ROGERS, Respondent, v. DIRECTOR OF REVENUE, State of Missouri, Appellant.
• Court: Missouri Court of Appeals

184 S.W.3d 137

Steven Mark ROGERS, Respondent, v. DIRECTOR OF REVENUE, State of Missouri, Appellant.

No. WD 65039.

Missouri Court of Appeals, Western District.

February 21, 2006.

COPYRIGHT MATERIAL OMITTED

Nicole L. Loethen, Jefferson City, MO, for Appellant.

Jeffrey S. Eastman, Gladstone, MO, for Respondent.

Before: ROBERT G. ULRICH, P.J., PATRICIA A. BRECKENRIDGE, and JAMES M. SMART, JJ.

ROBERT G. ULRICH, Presiding Judge.

The Director of Revenue, State of Missouri, appeals from the trial court's judgment ordering the reinstatement of the driving privileges of Steven Mark Rogers. The Director contends that the trial court erred in setting aside the revocation of Mr. Rogers' license because Mr. Rogers' conditional consent to take a chemical test was a refusal under section 577.041. The point is granted, and the judgment is reversed.

Facts

On October 10, 2003, Steven Rogers was arrested for driving while intoxicated. The arrest resulted from a traffic stop and the observations of the arresting officers, Officers Aric Bowzer and Charles Falkiner. The issue in this case does not involve the circumstances leading up to the arrest; the issue stems from the events that occurred after Mr. Rogers was taken to the Macon Police Department and asked to take a breath test to determine his blood alcohol level.

While Mr. Rogers and Officer Falkiner have differing recollections of the events that transpired upon their arrival at the police station, the facts, as determined by the trial court and in the light most favorable to the judgment, are as follows. At the police department, Mr. Rogers stated his consent to take the breath test. Officer Falkiner then set up the machine, which determines blood alcohol content through a breath test. Once the machine was set up, Mr. Rogers stated that he would not take the test until he went to the restroom. Officer Falkiner informed Mr. Rogers that if he did not take the test before the machine "times out," it would be counted as a refusal to take the test.¹ Mr. Rogers stated: "I'm not refusing. I just need to go to the bathroom first." Officer Falkiner also had Officer Bowzer come into the room and inform Mr. Rogers that his actions would be deemed a refusal. Officer Falkiner then set the machine up again in order to give Mr. Rogers another opportunity to take the test. Mr. Rogers continued to state that he would not take the test until he was allowed to use the restroom. The machine timed out a second time, and Officer Falkiner informed Mr. Rogers that he was counting that as a refusal.²

On October 29, 2003, the Director of Revenue notified Mr. Rogers that his driver's license would be revoked for one year, beginning November 16, 2003, pursuant to section 577.041, for refusing to take the breath test. On November 14, 2003, Mr. Rogers appealed the revocation of his driver's license to the Macon County Circuit Court and a preliminary order was entered.

Trial was held on December 20, 2004. During the trial, both Officer Falkiner and Mr. Rogers testified. The Circuit Court ordered the Director to reinstate Mr. Rogers' license. It found:

I have no doubt that the officer did what he was supposed to and mark the boxes in the checklist that he went through all of those steps. I have no doubt there was a machine there. I have no doubt he set it up, but I don't think it's a refusal. I have no doubt that Mr. Rogers was probably obnoxious to the officer, which might be an understatement, but I also have no doubt that probably Mr. Rogers needed to use the restroom. And I don't see that it would have been a big problem, since it only takes two minutes to set up the machine and it times out after two minutes, to let him use the restroom.

And under those circumstances, I don't think there was a refusal, and so I will make the injunction permanent.

The trial court's judgment states, in part, "Court finds in favor of [Mr. Rogers] in that he did not refuse the breath test."

The Director's timely appeal followed.

Standard of Review

The trial court's judgment must be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence, the trial court erroneously declared the law, or the trial court erroneously applied the law. Driskell v. Dir. of Revenue, 169 S.W.3d 187, 189 (Mo.App. S.D.2005). The evidence and all reasonable inferences drawn therefrom are viewed in the light most favorable to the trial court's judgment and all contrary evidence and inferences are disregarded. Richardson v. Dir. of Revenue, 165 S.W.3d 236, 237 (Mo.App. S.D.2005). The trial court weighs witness credibility and may accept or reject all, part, or none of any witness's testimony. Ruth v. Dir. of Revenue, 143 S.W.3d 741, 744 (Mo.App. S.D. 2004). If the evidence is admitted or uncontroverted so that the only issue is the legal effect of the evidence, there is no need to defer to the trial court's judgment. Hinnah v. Director of Revenue, 77 S.W.3d 616, 620 (Mo. banc 2002).

Analysis

"Issuance of a driver's license is no more than a personal privilege; however, once granted, the license may not be revoked arbitrarily but only in the manner and on the grounds provided by law." Sparling v. Dir. of Revenue, 52 S.W.3d 11, 13 (Mo.App. E.D.2001). Section 577.020³ provides that any person who drives on Missouri's public highways has impliedly consented to a chemical test to determine the content of alcohol or drugs in his or her blood. § 577.020.1; Johnson v. Dir. of Revenue, 168 S.W.3d 139, 141 (Mo.App. W.D.2005). If a person has been arrested for driving while intoxicated and refuses to submit to a chemical test to determine the person's blood alcohol or drug content as allowed by section 577.020, that person's driver's license must be revoked for one year pursuant to section 577.041.⁴ § 577.041.3; Kotar v. Dir. of Revenue, 169 S.W.3d 921, 924 (Mo.App. W.D.2005). The person must be informed of the consequences of failing to submit to a chemical test; if this is done and the driver refuses to submit to a chemical test, then the officer loses the authority to administer a chemical test as "none shall be given." § 577.041.1; Borgen v. Dir. of Revenue, 877 S.W.2d 172, 175 (Mo.App. W.D.1994). A person whose driver's license has been revoked for failure to submit to a chemical test may petition for a hearing in the county in which the arrest or stop occurred. § 577.041.4; Kotar, 169 S.W.3d at 924. At this hearing, the trial court is authorized to determine only the following: (1) whether the driver was arrested; (2) whether the arresting officer had reasonable grounds to believe the driver was driving while intoxicated; and (3) whether the driver refused to submit to an authorized chemical test as requested. Driskell, 169 S.W.3d at 189; § 577.041.4. The Director of Revenue bears the burden of proving these three elements by a preponderance of the evidence in order to make its prima facie case. Driskell, 169 S.W.3d at 189; Mings v. Dir. of Revenue, 165 S.W.3d 524, 525 (Mo.App. W.D.2005). If the Director fails to meet this burden as to any one of the elements, the circuit court must order the Director to reinstate the person's driver's license. Driskell, 169 S.W.3d at 189. Once the Director establishes a prima facie case, the driver may rebut the case or an element by a preponderance of the evidence. Brown v. Dir. of Revenue, 164 S.W.3d 121, 125 (Mo.App. E.D.2005). On appeal, the circuit court's judgment is reviewed and not the Director's administrative order. Driskell, 169 S.W.3d at 189.

The first two elements are not disputed; the only issue in this case is the third element of the prima facie case, whether Mr. Rogers refused to submit to an authorized chemical test as requested.

A "refusal" for purposes of this section, means declining of one's own volition to take a chemical test authorized by § 577.020 when requested by an officer to do so. A refusal occurs, in response to a request by an officer to submit to a chemical test, by expressly saying, "I refuse" or using similar language; by remaining silent; or by not blowing into the Breathalyzer. A qualified or conditional consent or refusal is considered a refusal for purposes of § 577.041.4(3), except where a driver qualifies a refusal on his or her having an opportunity to contact an attorney, as provided in § 577.041.1.

Roberts v. Wilson, 97 S.W.3d 487, 493 (Mo. App. W.D.2002)(internal citations omitted). See also Borgen, 877 S.W.2d at 175 (stating that a request for a test calls for an affirmative response from the defendant by either word or deed and anything that is not an affirmative response is a refusal within the meaning of the statute and that: "It is now well established that a `refusal' is the intentional failure to do what is necessary so that a chemical test of a driver's blood alcohol content can be performed."). The Missouri Supreme Court has defined a refusal in the following manner:

There is no mysterious meaning to the word "refusal." In the context of the implied consent law, it simply means that an arrestee, after having been requested to take the breathalyzer test, declines to do so of his own volition. Whether the declination is accomplished by verbally saying, "I refuse," or by remaining silent and just not breathing or blowing into the machine, or by vocalizing some sort of qualified or conditional consent or refusal, does not make any difference. The volitional failure to do what is necessary in order that the test can be performed is a refusal.

Spradling v. Deimeke, 528 S.W.2d 759, 766 (Mo.1975). The refusal does not have to be a knowing refusal, and if the driver is confused or unclear as to the consequences of refusal, he or she has an affirmative duty to seek clarification. See, e.g., Giesler v. Dir. of Revenue, 139 S.W.3d 216, 218 (Mo.App. E.D.2004)(stating that the refusal does not have to be a knowing refusal in order for licensure revocation to occur); Johnson, 168 S.W.3d at 142 (holding...