Rothwell v. Dir. Revenue

• Decision Date: 28 January 2014
• Docket Number: No. WD 76060.,WD 76060.
• Citation: 419 S.W.3d 200
• Parties: JW Bruton ROTHWELL, Respondent, v. DIRECTOR OF REVENUE, Appellant.
• Court: Missouri Court of Appeals

419 S.W.3d 200

JW Bruton ROTHWELL, Respondent,

v.DIRECTOR OF REVENUE, Appellant.

No. WD 76060.

Missouri Court of Appeals,

Western District.

Dec. 10, 2013.

Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 28, 2014.

JW Bruton Rothwell, Respondent Pro Se.

Rachel M. Jones, Jefferson City, MO, for appellant.

Before Division Four: JAMES E. WELSH, Chief Judge, Presiding, CYNTHIA L. MARTIN, Judge and JAMES C. THOMPSON, Special Judge.

CYNTHIA L. MARTIN, Judge.

The Director of the Department of Revenue (“Director”) appeals the trial court's judgment setting aside the revocation of JW Bruton Rothwell's (“Rothwell”) driver's license pursuant to section 577.041.¹ The Director argues that Rothwell's initial refusal to submit to a breath test was not negated by his subsequent voluntary submission to a blood test. We affirm the trial court's judgment.

Factual and Procedural History

On November 30, 2011, Rothwell was arrested by Missouri State Highway Patrol Trooper Billy Cole (“Trooper Cole”) for leaving the scene of an accident and driving while intoxicated.² At the scene, Trooper Cole read Rothwell the Implied Consent Warning required by section 577.041.1. Rothwell agreed to submit to a chemical test of his breath. Trooper Cole then transported Rothwell to the detention center for booking and processing, and for administration of the breath test.

After arriving at the detention center, Rothwell refused to submit a breath sample for chemical testing. Instead, Rothwell requested an attorney. Rothwell was provided a phone, a phone book, and twenty minutes to contact an attorney. His efforts were unsuccessful. Rothwell continued to refuse to submit to a breath test. Trooper Cole asked an on-call nurse to take a warrantless blood sample from Rothwell. The effort was unsuccessful becauseRothwell was combative and unwilling to cooperate.

Trooper Cole then transported Rothwell to St. Luke's Hospital, and advised Rothwell he was doing so in order to collect a blood sample. At the hospital, Rothwell cooperated and agreed to permit a blood sample to be obtained. ³ Rothwell was then transported back to the Platte County Detention Center. Because of Rothwell's initial refusal to submit to chemical testing, Trooper Cole issued Rothwell a notice of revocation of his driving privileges for a period of one year beginning December 15, 2011, and a fifteen day driving permit, pursuant to section 577.041.1. Rothwell was also charged with driving while intoxicated as a persistent offender and with changing lanes when movement could not be made with safety.

On December 8, 2011, Rothwell filed an application for a review of the administrative revocation in the Circuit Court of Platte County pursuant to section 577.041. Rothwell claimed that his driving privileges had been wrongly revoked for refusing to submit to a chemical test because evidence of his blood alcohol content was obtained by law enforcement officials through his voluntary submission to a blood test.

A bench trial was held on December 17, 2012. At trial, Christopher Hankins, a St. Luke's Hospital nurse, testified that he obtained Rothwell's blood sample without incident. Likewise, Trooper Cole testified that Rothwell was not combative and did not resist the collection of his blood sample. On December 20, 2012, the trial court entered its judgment finding, in pertinent part:

2. The Court finds that [Rothwell] was arrested and that [Trooper Cole] had reasonable grounds to believe that [Rothwell] was driving a motor vehicle while in an intoxicated condition.

3. [Rothwell] initially agreed to submit to a breath sample for chemical testing. After arriving at the detention facility, [Rothwell] refused to submit a breath sample for chemical testing. He then requested to speak to his lawyer and was given the phone book and a telephone. He was unable to contact an attorney. The nurse responded to the Detention Center to take a blood sample from [Rothwell]. [Rothwell] became combative and uncooperative while an effort was made to conduct a warrantless blood draw at the detention facility. That effort to draw blood was aborted. [Rothwell] was then transported to St. Luke's Hospital on Barry Road. [Trooper Cole] told [Rothwell] he was going to take [Rothwell] to St. Luke's to obtain a blood sample. [Trooper Cole] testified that [Rothwell] gave a blood sample at St. Luke's Hospital without incident. Nurse Christopher Hankins of St. Luke's Hospital testified that he drew [Rothwell's] blood with no struggle or resistance from [Rothwell]. The Court finds that [Rothwell], though having initially refused to submit to chemical testing of his breath and blood, acquiesced in the eventual blood draw at St. Luke's Hospital and the blood sample was successfully received by the Trooper. The Court finds [Rothwell's] acquiescence to have his blood drawn at the hospital constituted consent to the trooper's request to submit to a chemical analysis of [Rothwell's] blood. See McKay v. Director of Revenue, (W.D.74458 August 2012) and Kimbrell v. Director of Revenue, 192 S.W.3d 712 (Mo.App. W.D.2006). Consistent with the determination made in McKay v. Director of Revenue, the Court finds that [Rothwell] gave a blood sample at the direction of the Trooper and the Trooper obtained a voluntary sample of [Rothwell's] blood for analysis without incident or resistance. Thus, [Rothwell] did not refuse to provide a sample of his blood for chemical testing.

IT IS THEREFORE, ORDERED, ADJUDGED AND DECREED that the judgment of this Court is in favor of [Rothwell.] The revocation of [Rothwell's] driving privilege is hereby set aside.

(Emphasis added.)

The Director appeals.

Standard of Review

On appeal, it is the trial court's judgment, not the Director's administrative order that is reviewed. Kimbrell v. Dir. of Revenue, 192 S.W.3d 712, 715 (Mo.App. W.D.2006). “A trial court's judgment in a driver's license revocation case is reviewed as any court-tried civil case.” McKay v. Dir. of Revenue, 382 S.W.3d 119, 121 (Mo.App. W.D.2012). “In an appeal from a court-tried civil case, 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, or it erroneously declares or applies the law.” Id. (citing Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976)). “ ‘The evidence and 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.’ ” Id. (quoting Kimbrell, 192 S.W.3d at 714).

Analysis

In its sole point on appeal, the Director argues that the trial court erroneously declared and applied the law in reinstating Rothwell's driving privileges because Rothwell's refusal to submit to a chemical test of his breath was not negated by his subsequent voluntary submission to a chemical test of his blood. The Director concedes that Rothwell “eventually acquiesced” to a chemical test of his blood, [Appellant's Brief, p. 11], and thus does not appeal the trial court's finding that Trooper Cole obtained a voluntary sample of Rothwell's blood for analysis without incident or resistance. The Director also does not contest that as a result, law enforcement received a satisfactory sample for calculation of Rothwell's blood alcohol content. Thus, the single issue presented in the Director's appeal is whether voluntary submission to a chemical blood test after refusing to submit to a chemical breath test for the purpose of determining blood alcohol content negates the consequence of administrative revocation specified by section 577.041.

In reaching its conclusion to reverse Rothwell's administrative revocation, the trial court relied on McKay. The Director “agrees that the facts of McKay are directly analogous” to Rothwell's case, [Appellant's Brief, p. 11]. The Director argues, however, “that McKay misstated and misapplied the law,” and asks us to overrule McKay. [Appellant's Brief, p. 11]. We are not inclined to do so.

McKay's Construction of Section 577.041

McKay was arrested on suspicion of driving while intoxicated. 382 S.W.3d at 120. McKay was transported to the police station where she refused chemical testing of her breath. Id. McKay requested an attorney after she was informed that she would be taken to the hospital to obtain a blood sample. Id. Efforts to contact an attorney were unsuccessful. Id. The arresting officer made a second request that McKay voluntarily submit to a breath test. Id. McKay refused. Id. At the hospital, however, McKay acquiesced to the arresting officer's request, and her blood was voluntarily drawn. Id. Nonetheless, McKay's license was administratively revoked because she initially refused to submit to chemical testing. Id. at 120–21. The trial court set aside the Director's administrative license revocation, finding that McKay did not refuse to submit to chemical testing of her blood alcohol content in light of the fact that she voluntarily gave a blood sample. Id. at 121.

On appeal, we affirmed. Id. at 120. We held that “[u]nder Missouri's Implied Consent Law, drivers on Missouri's public roads are deemed to have impliedly consented to a ‘chemical test or tests of the person's breath, blood, saliva or urine for the purpose of determining the alcohol or drug content of the person's blood’ if the police officer has reasonable grounds to believe the driver is intoxicated.” Id. at 121 (citation omitted). “A driver may, however, revoke that implied consent and refuse to submit to chemical testing; but, upon doing so, the person's driving privileges are subject to administrate revocation by the Director pursuant to section 577.041.” Id. “ ‘Giving the driver the option to refuse to consent with the consequence of an automatic one year revocation of his or her driver's license balances the right to privacy against the public's interest in controlling the menace of drunken driving.’ ” Id. (quoting Kimbrell, 192...