Sparling v. Director of Revenue

• Decision Date: 12 June 2001
• Parties: (Mo.App. E.D. 2001) Sherry L. Sparling, Respondent, v. Director of Revenue, Appellant. ED78757 0
• Court: Missouri Court of Appeals

52 S.W.3d 11 (Mo.App. E.D. 2001)

Sherry L. Sparling, Respondent, v. Director of Revenue, Appellant.

ED78757

Missouri Court of Appeals Eastern District

06/12/2001

Appeal From: Circuit Court of St. Louis County, Hon. Robert S. Cohen

Counsel for Appellant: Kristi L. Simmons

Counsel for Respondent: Party Acting Pro Se

Opinion Summary: The Director of Revenue appeals the court's judgment reinstating the driving privileges of Sherry L. Sparling. The Director contends the trial court erred by setting aside the revocation of the driver's license because its judgment was not supported by substantial evidence. The Director asserts the driver was arrested by a police officer who had probable cause to believe she was driving while intoxicated, and she refused to submit to a blood test.

Division Four holds: The record clearly indicates that the driver: (1) submitted to a breath test; (2) originally agreed to submit to a chemical test of her blood; (3) was told by the nurse at the hospital that she would be billed for the administration of the blood test; and (4) stated she would not take the blood test if she had to pay for it. Thus, it is evident that driver was not refusing to take the blood test but merely was refusing to pay for it. Since payment for the administration of a blood test is not a requirement set forth in Chapter 577, particularly in sections 577.020 and 577.041, the trial court correctly found that the driver did not refuse to submit to a chemical test of her breath or blood.

Mooney, P.J., and Sullivan, J., concur.

Paul J. Simon, Judge

The Director of Revenue (Director) appeals from the judgment of the Circuit Court of St. Louis County reinstating the driving privileges of Sherry L. Sparling (Driver). Director contends the trial court erred by setting aside the revocation of Driver's license because its judgment was not supported by substantial evidence. Director asserts that Driver was arrested by a police officer who had probable cause to believe she was driving while intoxicated, and she refused to submit to a blood test. We affirm.

The facts are not in dispute. Driver's petition was submitted solely on the records of the Department of Revenue, which include: (1) Driver's Missouri Driver Record; (2) notice of revocation; (3) Alcohol Influence Report; and (4) Investigative Report. The record reflects that on October 20, 1999, at approximately 2:00 a.m., Officer Wilson of the Town and Country Police Department observed Driver's vehicle traveling at a high rate of speed and straddling the white line dividing two lanes in the road. Upon pulling Driver over and informing her of the traffic violations, Wilson detected a moderate odor of alcohol. According to Wilson's report, Driver admitted to consuming several alcoholic drinks. He requested that Driver participate in several field sobriety tests, and she complied. Although the Alcohol Influence Report indicates that Driver failed the "alphabet test," it is unclear whether she failed the other field tests. Wilson administered to Driver a portable breathanalyzer test (PBT) which indicated that she had consumed alcohol. At that time, Wilson arrested Driver for driving while intoxicated (DWI).

Wilson transported her to the Creve Coeur Police Station where he read her Missouri's Implied Consent Law, Section 577.041 RSMo 2000 (all further references herein shall be to RSMo 2000 unless otherwise indicated). Driver consented to a chemical test of her breath, which indicated she had a blood alcohol content (BAC) of .089. Wilson inventoried the contents of Driver's purse where he found a black canister containing a green leafy substance and a "half burnt paper cigarette." Wilson believed both to be marijuana. After Driver informed Wilson that the last time she smoked marijuana was sometime that morning, Wilson requested that she submit to a chemical test of her blood, and she agreed.

Wilson transported Driver to St. John's Hospital to have the test performed. Once there, Driver was informed by the desk nurse that she would be billed for the test. Driver told Wilson that "she would not do it if she had to pay for it." Wilson reread the Implied Consent Law, and Driver told him that "she did not care." Wilson told her that he would "count it as a refusal," and Driver stated, "Go ahead and do it."

Director suspended Driver's driving privileges pursuant to Section 577.041 for refusal to submit to an alcohol/drug chemical test. The Commissioner made the following findings and recommendations, which were adopted and confirmed by the trial court: (1) Wilson had probable cause to arrest Driver for DWI or an alcohol related traffic offense; (2) Driver did not refuse to submit to a chemical test of her breath; and (3) the revocation shall be removed from Driver's driving record and her driving privileges be reinstated.

On appeal, Director contends the trial court erred...