Staggs v. Director of Revenue

• Citation: 223 S.W.3d 866
• Decision Date: 17 April 2007
• Docket Number: No. WD 67214.,WD 67214.
• Parties: Ronald D. STAGGS, Appellant, v. DIRECTOR OF REVENUE, State of Missouri, Respondent.
• Court: Court of Appeal of Missouri (US)

223 S.W.3d 866

Ronald D. STAGGS, Appellant, v. DIRECTOR OF REVENUE, State of Missouri, Respondent.

No. WD 67214.

Missouri Court of Appeals, Western District.

April 17, 2007.

Motion for Rehearing and/or Transfer to Supreme Court Denied May 29, 2007.

Application for Transfer Denied June 26, 2007.

Bruce Brandom Brown, Kearney, MO, for appellant.

James Artelle Chenault, III, Jefferson City, MO, for respondent.

Before JAMES M. SMART, JR., P.J., JOSEPH M. ELLIS, and LISA WHITE HARDWICK, JJ.

JAMES M. SMART, JR., Judge.

Ronald Staggs appeals the judgment of the circuit court upholding the revocation of his driver's license. His license was revoked by the Director of Revenue for failure to submit to a breathalyzer test of his blood alcohol content. Finding no error in the circuit court judgment, we affirm.

Procedural and Factual Background

The relevant facts are not in dispute. At approximately 1:53 a.m. on June 22, 2005, Officer Anthony Roetman was notified by the Clay County Sheriff's Department Dispatch of a pickup truck that had just turned northbound onto Highway 169 from Main Street in Smithville, Missouri. A 9-1-1 caller had expressed concern about the manner in which the truck was being driven. Officer Roetman did not see the truck until he drove by a One Stop convenience store. There he observed a truck matching the description and bearing the license plate he was looking for. Officer Roetman waited across the street from the truck.

At about 2:48 a.m., Officer Roetman observed someone walk out of the convenience store and get in the truck. The truck then proceeded southbound on Highway 169. Officer Roetman followed the truck and observed the truck weaving in its lane of traffic, crossing the center line of the two lane divided highway. Officer Roetman activated his lights, and the truck pulled over at Shamrock Way and Highway 169.

Officer Roetman approached the driver in the vehicle. The officer could smell a "very strong" odor of alcohol. He asked the driver if he had been drinking. The driver responded that he had not. The driver appeared to be swaying in his vehicle and went very slowly and deliberately through his wallet while looking for his driver's license. Eventually, he produced a hardship license which identified him as Ronald Staggs.

After checking the license with dispatch, Officer Roetman asked Staggs to exit the vehicle so that he could perform a field sobriety test on him. Officer Roetman performed three field sobriety tests on Staggs, the horizontal gaze nystagmus test, the one leg stand test, and the walk-and-turn test. Staggs performed poorly on all three tests. At that point, Officer Roetman formed an opinion that Staggs's driving ability was impaired and placed Staggs under arrest for driving while intoxicated.

Officer Roetman then placed Staggs in his police car and transported him to the police station. At the police station, Officer Roetman advised Staggs of the "Implied Consent" law, section 577.041. He read from the following to Staggs:

1. You are under arrest for driving while intoxicated.

2. To determine the alcohol/drug content of your blood, I am requesting you submit to a chemical test of your Breath.

3. If you refuse to take the test(s), your driver license will immediately be revoked for one year.

4. Evidence of your refusal to take the test(s) may be used against you in prosecution in a court of law.

5. Having been informed of the reasons for requesting the test(s), will you take the test(s)?

Staggs refused to take a breathalyzer test. After this, Officer Roetman advised Staggs of his Miranda rights. At that point, Staggs requested to speak with an attorney.

Staggs's driver's license was revoked by the Director of Revenue for refusal to take the breathalyzer test. Staggs petitioned the Circuit Court of Clay County for review of the revocation. A hearing was held on May 22, 2006.

The Circuit Court upheld the revocation, finding (1) that Staggs was arrested in Clay County, Missouri, (2) that the arresting officer had reasonable grounds to believe that Staggs was driving a motor vehicle while in an intoxicated condition, and (3) that Staggs refused to submit to the test. Staggs appeals, contending only with the circuit court's finding that he refused to submit to the test.

Standard of Review

To uphold the revocation of a driver's license for refusal to take a breathalyzer test, the circuit court must determine only that the driver was arrested, that the arresting officer had reasonable grounds to believe the driver was driving while intoxicated, and that the driver refused to submit to the test. Section 577.041.4 RSMo;¹ Brown v. Dir. of Revenue, 34 S.W.3d 166, 169 (Mo.App. 2000). The Director of Revenue has the burden of proof on all these issues. Brown, 34 S.W.3d at 169. Failure to prove all three elements will result in the reinstatement of the driver's license. Id. As in all other judge-tried cases, we will uphold the circuit 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. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

Analysis

Staggs argues that his refusal to submit to the test was not an informed refusal and, therefore, not valid, because he was not informed of his ability to contact an attorney. Staggs acknowledges that this court has rejected such arguments already. See, e.g., Akers v. Dir. of Revenue, 193 S.W.3d 325 (Mo.App.2006); see also Sweatt v. Dir. of Revenue, 940 S.W.2d 540, 543 (Mo.App.1997). He argues, however, that these cases were erroneously decided and that we should overrule them to the extent that they hold that an officer is not required to inform an arrestee of his ability to attempt to contact an attorney.

Staggs first argues that the holding in Akers, and similar cases, is not in harmony with the spirit of the statute, and sections 577.041 and 577.020 should be read in pari materia with other relevant statutes, such as section 544.170 and the cases applicable to that statute. Section 544.170 relates to how long a suspect can be detained without a warrant and without criminal charges being filed. Because section 544.170 has nothing to do with a driver's right to contact an attorney before taking a chemical test of his blood alcohol content, we fail to see that we are to read it in pari materia with section 577.041. More importantly, Staggs's argument fails for two main reasons. First, the language of the statute is clear and unambiguous and requires no resort to the rules of statutory construction. See Teson v. Dir. of Revenue, 937 S.W.2d 195, 198 (Mo. banc 1996). Second, none of the cases on which Staggs relies to make his argument actually support the notion that an officer is required to inform an arrestee that he may contact legal counsel.

Driving on the highways and roads of this state has been held to be a privilege, not a right. Douglass v. Wilson, 10 S.W.3d 199, 204 (Mo.App.2000) (overruled on other grounds by Verdoorn v. Dir. of Revenue, 119 S.W.3d 543, 547 (Mo. banc 2003)). The legislature is permitted to place conditions on the privilege. See id. Under the Implied Consent Law, a driver who operates a motor vehicle on Missouri roads is deemed to have impliedly consented to a chemical test of his blood alcohol content. Section 577.020.2; Akers, 193 S.W.3d at 328. The driver may withdraw that consent; however, in doing so the driver makes his license subject to revocation. Section 577.041.1; Akers, 193 S.W.3d at 328. Because revocation is a severe consequence, the officer requesting the test is required to give the driver certain statutorily mandated information. Id. Section 577.041.1 mandates that the officer inform the driver of the reasons for requesting the driver submit to the test, that evidence of refusal to take the test may be used against him, and that his license shall be immediately revoked upon refusal to submit to the test. Id. If the officer omits any of this statutorily necessary information, the driver's refusal to take the test is not valid because the driver is deemed to not have made a voluntary withdrawal of his implied consent. Akers, 193 S.W.3d at 328.

The driver may request to speak to an attorney. If he does so, the statute mandates that he be given "twenty minutes in which to attempt to contact an attorney." Section 577.041.1; Schussler v. Fischer, 196 S.W.3d 648, 651 (Mo.App. 2006). After twenty minutes has expired, if the driver still refuses to take the test, the refusal is final. Id. Missouri courts have held that the objective of section 577.041.1 is satisfied if the driver is given an opportunity to attempt to contact an attorney and the driver abandons the attempt or the twenty minute period expires without contact being made. Lorton v. Dir. of Revenue, 985 S.W.2d 437, 441 (Mo. App.1999). However, if the driver requests to speak to an attorney, but is not given a twenty minute opportunity to do so, the refusal cannot be valid. Id.; see also McMurray v. Dir. of Revenue, 800 S.W.2d 820 (Mo.App.1990). The twenty minute period does not begin until after the officer gives the statutorily mandated information to the driver, regardless of when the driver makes the request. McMaster v. Lohman, 941 S.W.2d 813, 817 (Mo.App.1997).

"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." Schussler, 196 S.W.3d at 651 (emphasis added). The Missouri Supreme Court has indicated that the language of the statute is clear and unambiguous and requires no resort to the rules of construction. Teson, 937 S.W.2d at 198.

The statute specifies the information the officer is required to give the driver:

The request of the officer shall include the reasons of the officer for requesting the person to submit to a test and also shall inform the person that evidence of refusal to take the test may be used against...