Schussler v. Fischer

• Decision Date: 27 June 2006
• Docket Number: No. WD 65468.,WD 65468.
• Citation: 196 S.W.3d 648
• Parties: Kris Allen SCHUSSLER, Respondent, v. Carol Russell FISCHER, Director of Missouri Department of Revenue, Appellant.
• Court: Missouri Court of Appeals

196 S.W.3d 648

Kris Allen SCHUSSLER, Respondent, v. Carol Russell FISCHER, Director of Missouri Department of Revenue, Appellant.

No. WD 65468.

Missouri Court of Appeals, Western District.

June 27, 2006.

Motion for Rehearing and/or Transfer to Supreme Court Denied August 1, 2006.

James Artelle Chenault III, Jefferson City, for appellant.

Jeffrey Leon Dull, Matthew D. Lowe, Clinton, for respondent.

RONALD R. HOLLIGER, Judge.

The Director of Revenue ("Director") appeals the judgment of the Circuit Court of Henry County, Missouri, setting aside the revocation of Kris Schussler's ("Driver") driver's license under section 577.041¹, for the police officer's failure to allow Driver twenty minutes to contact an attorney after being read the Implied Consent Law. We find that the officer violated the implied consent law by not allowing Schussler an additional twenty minutes to contact an attorney after the implied consent warning was given even though he had earlier requested an attorney and been unsuccessful in reaching one after he was given a Miranda warning. Because the Director has failed to satisfy its burden to show the violation was not actually prejudicial, we affirm.

Points on Appeal

The Director raises two points of error in the trial court's order setting aside the revocation of Driver's license. In his first point, the Director claims that the trial court erred in setting aside the revocation of Driver's license, because the decision was against the weight of the evidence and the trial court erroneously applied the law, in that the uncontroverted evidence established that there were reasonable grounds to believe Driver was driving while intoxicated.

In his second point, the Director claims that the trial court erred in setting aside the revocation of Driver's license, because the trial court erroneously applied the law, in that Driver refused to submit to the breath test when given the implied consent warning and did not ask to speak to counsel after being read the Implied Consent Law, and Driver was not prejudiced by not being given an additional twenty minutes to attempt to contact counsel after being given the implied consent warning. Because Point II is dispositive of this case, we address it alone.

Factual and Procedural Background

On October 28, 2004, at 11:46 P.M., Officer David Akers ("Officer") of the Clinton, Missouri, Police Department, arrested Driver for driving while intoxicated. Officer received a call at 11:15 P.M. concerning an intoxicated person at an Amoco gas station. When Officer arrived at the station, the caller pointed out Driver's vehicle as it was leaving the station. Officer caught up to the vehicle and initiated a traffic stop after observing Driver's vehicle weaving in its lane and traveling to the shoulder of the roadway. When he spoke to Driver, Officer smelled an odor of intoxicating beverage and noticed that Driver's eyes were bloodshot and glassy/watery. Officer also observed that Driver was "a little wobbly" when walking to the rear of the vehicle. Officer administered the horizontal gaze nystagmus test, which indicated that Driver was intoxicated. Driver refused to do the one-legged stand and walk-and-turn test because stitches had been removed from his leg at an earlier date.

Driver was transported to the Henry County Jail and was advised of his Miranda rights at 12:03 A.M. At this time, Driver requested to contact his attorney and Officer allowed Driver twenty minutes to attempt to contact his attorney. Driver was not able to contact his attorney, but was able to contact his girlfriend. At 12:44 A.M., Officer read Driver the Implied Consent Law from the Alcohol Influence Report and then asked Driver if he would take a breathalyzer test. Driver refused and his license was immediately revoked pursuant to section 577.041.

Pursuant to section 577.041.4, Driver filed a petition for a hearing to reinstate his license. The circuit court set aside the Director's revocation of Driver's license. This appeal followed.

Standard of Review

Appellate review of an order setting aside the revocation of a driver's license is governed by the standard set forth in Murphy v. Carron, 536 S.W.2d 30, (Mo. banc 1976). Kotar v. Dir. of Revenue, 169 S.W.3d 921, 924 (Mo.App. W.D. 2005). The judgment of the trial court shall 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. Id.

Discussion

In Missouri, a driver who operates a motor vehicle is deemed to have impliedly consented to a chemical test to determine the alcohol content of the driver's blood. Section 577.020.1. If a driver under arrest for driving while intoxicated refuses to submit to a chemical test, the Director of Revenue shall revoke the person's driver's license for a period of one year. Section 577.041.3. Prior to requesting a driver to submit to a chemical test, the officer must give the reasons for the request and inform the driver that evidence of a refusal to take the test may be used against the driver and the driver's license shall be immediately revoked upon refusal. Section 577.041.1.

If a driver requests to speak to an attorney, the driver is to be given twenty minutes to attempt to contact an attorney immediately after the officer informs the driver of the Implied Consent Law. Section 577.041.1; McMaster v. Lohman Dir. of Revenue, 941 S.W.2d 813, 817 (Mo.App. W.D.1997). The purpose of this statutory provision is to provide the driver with a reasonable opportunity to contact an attorney to make an informed decision as to whether to submit to a chemical test. Kotar, 169 S.W.3d at 925. After the twenty minutes has expired, a continued refusal to submit to the test is deemed a refusal. Section 577.041.1.

A driver whose license has been revoked for refusal to submit to a chemical test may petition for a hearing before a court in the county in which the arrest occurred. Section 577.041.4. At the hearing, the Director has the burden of establishing a prima facie case for revocation for refusal to submit to a chemical test. Kotar, 169 S.W.3d at 924. The Director must show: (1) the driver was arrested; (2) the officer had reasonable grounds to believe that the driver was driving while intoxicated; and (3) the driver refused to submit to a chemical test. Id. at 925-26 (citing Section 577.041.4; Mount v. Dir. of Revenue, 62 S.W.3d 597, 599 (Mo.App.2001)). The driver then has the burden of rebutting the Director's prima facie case for revocation. Id.

Section 577.041.1 is violated if an officer fails to allow a driver, upon request, twenty minutes to attempt to contact an attorney after being read the Implied Consent Law. Id. at 926. However, to be entitled to relief, the driver must be actually prejudiced by the officer's failure to comply with the statute. Id. The burden is on the Director to show that the driver was not actually prejudiced by the officer's failure to comply with section 577.041.1. Id.

Whether Driver's request to speak to an attorney before being read the Implied Consent Law was sufficient to invoke the twenty minute provision of section 577.041.1 must be addressed before we can determine whether Driver suffered actual prejudice in not being given twenty minutes to contact an attorney after the Implied Consent Law was read.

The Director argues that in failing to request to contact an attorney after being read the Implied Consent law, Driver never actually invoked the twenty-minute rule. The Director argues that the language of section 577.041.1 allows a driver twenty minutes to contact an attorney only if the driver requests to speak to an attorney after being asked to submit to a chemical test. It is a well-recognized principle that if the language of the statute is clear, the court must give effect to the language as written. Harper v. Dir. of Revenue, 118 S.W.3d 195, 199 (Mo.App. W.D.2003)(citing Knob Noster Educ. v. Knob Noster R-VIII Sch. Dist., 101 S.W.3d 356, 361 (Mo.App. W.D.2003)). However, when the language of a statute is ambiguous or if its plain and ordinary meaning would lead to an absurd or illogical result in light of the statute's purpose, the court will look past the plain and ordinary meaning of the statute. Id.

A driver who requests to speak to an attorney after being given a Miranda warning but before being read the Implied Consent Law may not be aware that he or she needs to, or has the right to, make an additional request to speak to an attorney again after being read the Implied Consent Law. Most drivers are probably not aware of section 577.041.1's twenty minute provision and the statute does not require officers to inform drivers that if they request an attorney after being read the Implied Consent Law they will be given twenty minutes to attempt to contact an attorney. As stated in Brown v. Dir. of Rev., "the average citizen would likely be more aware of the Miranda rights . . . [and] may view his rights and the consequences of exercising those rights under section 577.041 in the same manner that the exercise of those rights would be applied under Miranda." 34 S.W.3d 166, 172 (Mo.App. W.D.2000).

Due to this confusion and lack of awareness, this court has stated that whether the request to speak to an attorney comes before or after the Implied Consent Law is read, section 577.041.1's twenty minute waiting period begins running immediately after the officer has informed the driver of the Implied Consent Law. Brown, 34 S.W.3d at 174; McMaster, 941 S.W.2d at 817. This is consistent with the legislature's purpose. To hold otherwise would place an undue burden on the driver and defeat the purpose of the statute. In this case, the Driver's request to speak to an attorney after Miranda, but before being read the Implied Consent Law, was sufficient to invoke the twenty-minute rule.

The Director relies on Brown v. Director of Revenue, 34 S.W.3d 166 (Mo.App. W.D.2000)(rev...