State v. Block, WD

• Decision Date: 30 October 1990
• Docket Number: No. WD,WD
• Citation: 798 S.W.2d 213
• Parties: STATE of Missouri, Respondent, v. Russell P. BLOCK, Appellant. 42791.
• Court: Missouri Court of Appeals

Page 213

798 S.W.2d 213

STATE of Missouri, Respondent, v.Russell P. BLOCK, Appellant.

No. WD 42791.

Missouri Court of Appeals Western District.

Oct. 30, 1990.

John E. Redmond, Kansas City, for appellant.

Donald Eugene Reynolds, Rock Port, for respondent.

Before LOWENSTEIN, P.J., and FENNER and ULRICH, JJ.

FENNER, Judge.

Russell P. Block appeals from his convictions of two separate counts of driving while intoxicated in violation of § 577.010, RSMo 1986.

Block was charged by misdemeanor information of Count I--driving while intoxicated on April 28, 1989; Count II--careless and imprudent driving on April 28, 1989; Count III--driving while intoxicated on May 13, 1989; and Count IV--operating a motor vehicle with expired vehicle license on May 13, 1989.Thus, the information charges offenses occurring on two separate dates.

The evidence adduced at trial will be discussed separately in connection with the dates of the charged offenses and the points to which they apply.As for the events leading up to charges alleged on April 28, 1989, Carol Meinders testified that she lived in a house on the south side of Route A and Route BB in Watson, Missouri.Mrs. Meinders' daughter informed her that a van had driven through their yard.Mrs. Meinders went outside and found the van at the south end of the lot.The van had come into contact with the front fender of Meinders' pickup.Upon looking inside the van, Mrs. Meinders observed Block sitting in the driver's seat, holding his stomach.The engine of the van was still running.Mrs. Meinders asked Block if he was alright and he responded that he was alright.She testified that she noticed a strong odor of alcohol.

Block gave Meinders his name and told her he would have his insurance people contact her.A friend of Block's drove Block to his apartment.Meinders stated that this incident occurred a few minutes after twelve and that she called the police at about a quarter past twelve, after Block had left with his friend.

Trooper Chris Wilson, a highway patrolman, was dispatched to the accident scene at about 1:00 p.m., and arrived at the Meinders' residence approximately a half hour later.Upon arrival Wilson did not observe an accident and went to the Meinders' house.He spoke with Mrs. Meinders who informed him as to the incident involving the van.She also gave Wilson a description and license number of the van and informed him that the driver was Russell Block.

Trooper Wilson then proceeded to the Miller Apartments, where he found the van Mrs. Meinders had described to him.He located Block's apartment and knocked on the door, but received no response.Trooper Wilson went back to the Meinders' home to use the phone in an attempt to obtain a warrant for leaving the scene of an accident.He then went back to the Miller Apartments to wait for the warrant and was joined by Trooper Tovar.

After obtaining the warrant, Troopers Wilson and Tovar proceeded to Block's apartment and announced that they had a warrant for his arrest.Block came to the door in his underwear, looking as if he had been lying down or was very groggy and had a strong odor of alcohol about his person.Trooper Wilson believed Block to be intoxicated at this time.Block was placed under arrest at approximately 2:30 p.m., for leaving the scene of an accident and transported to the Sheriff's office.Block was not given a field sobriety test prior to or after being transported nor was he given a breathalyzer test.

Block was subsequently charged by information with operating a motor vehicle while in an intoxicated or drugged condition at or near Route A and Route BB in Watson, Missouri, on April 28, 1989.

Block's points one and two relate to the conviction arising out of the incident on April 28, 1989.In both points, Block claims the evidence was insufficient to support his conviction of driving while intoxicated on April 28, 1989.This court agrees.

The elements of the offense charged herein are: (1) that [Block] operated a motor vehicle; and (2) that he was intoxicated while doing so. § 577.010.1, RSMo 1986.Proof of intoxication at the time of arrest, when remote from the operation of the vehicle, is insufficient in itself to prove intoxication at the time the person was driving.State v. Dodson, 496 S.W.2d 272(Mo.App.1973), see also, Domsch v. Director of Revenue, 767 S.W.2d 121, 123-124(Mo.App.1989).

The evidence produced by the state showed that Mr. Block was involved in an accident at approximately 12:10 p.m., on April 28, 1989.The only evidence as to Block's intoxication at this time came from Mrs. Meinders who stated that when she arrived at the van she noticed a strong odor of alcohol.Her testimony did not specify whether the odor came from Block's person.Mrs. Meinders was not asked to render an opinion as to whether or not Block was intoxicated at the time of the accident.

The only other evidence of Block's intoxication on April 28, 1989, was from the testimony of Troopers Wilson and Tovar to the effect that when they received a warrant for leaving the scene of an accident and effected the arrest of Block at 2:30 p.m., some two hours and twenty minutes after the incident, Block was intoxicated.They were not asked to express an opinion as to Block's intoxication at the time of the accident, nor would they have been qualified to express such opinion under the facts herein.

Simply put, there is no evidence to support a finding that Block was intoxicated at the time of the accident on April 28, 1989, and for that reason, his conviction of driving while intoxicated on that date is hereby reversed.

Turning now to Block's conviction of driving while intoxicated on May 13, 1989, the following evidence was adduced at trial.On May 13, 1989, Mrs. Carol Meinders saw a vehicle on the side of the road west of her house.It was a little yellow car, but she did not know who owned or drove the car.Her husband called the Sheriff's Office or Highway Patrol, but Mrs. Meinders did not know what time it was.An officer did respond to the call, but Mrs. Meinders did not speak to the officer.

Trooper James Elder with the Missouri Highway Patrol responded to the call.He had received a radio report of a car partially in the ditch in Watson, Missouri.When Trooper Elder arrived at the scene in Watson, it was about 2:00 p.m., twenty minutes after being notified.He found a small gray car completely off the roadway partially in a ditch.Block was sitting asleep behind the...