Spencer, In re

• Decision Date: 29 January 1969
• Docket Number: No. 8827,8827
• Parties: In the Matter of Driver's License of Alvis Leland SPENCER, Petitioner-Appellant.
• Court: Missouri Court of Appeals

Page 8

439 S.W.2d 8

In the Matter of Driver's License of Alvis Leland SPENCER,

Petitioner-Appellant.

No. 8827.

Springfield Court of Appeals, Missouri.

Jan. 29, 1969.

Harold L. Henry, West Plains, for petitioner-appellant.

TITUS, Judge.

Petitioner's license and permit to drive a motor vehicle in Missouri was revoked by the director of revenue for one year effective March 16, 1968, because petitioner, following his arrest for intoxicated driving, allegedly refused to submit to a chemical test of his breath by use of a breathalyzer. The Circuit Court of Howell County refused petitioner's application for a judgment ordering the director to reinstate his license, and this appeal ensued.

This matter is civil in nature (Blydenburg v. David, Mo. (banc), 413 S.W.2d 284, 290) and is governed by § 564.444 RSMo 1959, V.A.M.S., which provides that if a person arrested for driving while intoxicated refuses to submit to the test, the arresting officer shall make a sworn report thereof to the director of revenue who, upon receipt of such report, 'shall revoke the license of the person refusing to take the test for a period of not more than one year.' Subsection 2 of the statute permits a judicial hearing on the revocation and prescribes that the prosecuting attorney 'shall appear at the hearing on behalf of the arresting officer.' The hearing is conducted to 'determine only: (1) Whether or not the person was arrested; (2) Whether or not the arresting officer had reasonable grounds to believe that the person was driving a motor vehicle while in an intoxicated condition; and (3) Whether or not the person refused to submit to the test.' Should the judge determine any one of these three issues in the negative, 'he shall order the director to reinstate the license or permit to drive.'

We first examine our jurisdiction because the director of revenue, involved in administering the law, is a state officer and Article 5, § 3 of our Constitution, V.A.M.S. specifies, 'The supreme court shall have exclusive appellate jurisdiction in all cases * * * where * * * any state officer as such is party * * *.' Unlike Pollard v. David, Mo., 421 S.W.2d 296, and Blydenburg v. David, supra, 413 S.W.2d 284, the director was not named as a party to this action and no constitutional question is being litigated. The director is not required to be made a party by § 564.444 and the action he takes in complying with the statute is purely perfunctory. He did not appear in this cause, for the prosecuting attorney was appearing 'on behalf of the arresting officer.' The term 'state officer' in its appellate jurisdictional sense 'should ordinarily mean that the state officer is an adversary or contesting party.' Wilson v. Morris, Mo., 369 S.W.2d 402, 405(1). In this instance the director was, at the most, no more than a passive participant and, as regards the particular hearing in question, he was neither an adversary nor a contesting party. Ergo, we accept jurisdiction and proceed to determine the merits.

For our purposes here ¹ it is sufficient to note that when a breathalyzer is ready for testing a red 'empty' light appears on the upper left hand corner of the device to indicate 'the instrument is empty and clear, ready to receive a breath sample.' The subject being tested is then directed to blow into a mouthpiece, and if he does so properly 'the red light would go out and a green light on the upper right hand corner would come on * * * that indicates there is sufficient breath or air in the instrument to run a test.'

Officer Ivan Petrey arrested petitioner and took him to the West Plains, Missouri, police station where another policeman, James Henry Lusk, was present. Petitioner agreed to be tested. The breathalyzer was started, the red 'empty' light appeared, and petitioner was directed to blow into the mouthpiece. Petitioner stated he blew into the mouthpiece 'as hard as I could * * * two or three times.' The policeman, agreeing that petitioner 'tried to blow in it,' nevertheless testified 'he was blowing around the mouthpiece * * * the breath was going out of his mouth into the atmosphere.' Apparently feeling petitioner's blowings were actually a ruse to foil the machine, the officers 'didn't try' to obtain a reading or analyze the test and, according to petitioner, Officer Petrey said, 'That's it. I'm just going to put you down as a refusal.'

But there is more to this case than what Petrey and Lusk consider as unconscientious exhalations by petitioner. It is said 'the breathalyzer machine is considered a reliable device.' State v. Becker, Mo.App., 429 S.W.2d 290, 291. Therefore, we opine the contrivance could better gauge the volume and velocity of petitioner's huffings and puffings than police officers who rely solely upon unscientific sightings. If the breathalyzer gave petitioner the green light, then we should do likewise.

Upon the appeal of a court-tried case, this court reviews the entire matter upon the law and the evidence as in suits of an equitable nature, and makes its own findings of fact. Harrison v. Harrison, Mo.App., 417 S.W.2d 39, 43(3). It should be borne in mind that petitioner and the two police officers were the...