State v. Cox

• Decision Date: 06 July 1992
• Docket Number: No. 17881,17881
• Citation: 836 S.W.2d 43
• Parties: STATE of Missouri, Plaintiff-Appellant, v. John M. COX, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 43

836 S.W.2d 43

STATE of Missouri, Plaintiff-Appellant, v. John M. COX, Defendant-Respondent.

No. 17881.

Missouri Court of Appeals,

Southern District,

Division Two.

July 6, 1992.

Kerry Rowden, Pros. Atty., Donna L. Holden, Asst. Pros. Atty., Tuscumbia, for plaintiff-appellant.

Mark A. Ludwig, Lana R. Woolsey, Carson & Coil, Jefferson City, for defendant-respondent.

SHRUM, Presiding Judge.

The state charged the defendant, John Cox, with involuntary manslaughter, in violation of § 565.024, RSMo 1986. The trial court sustained the defendant's pre-trial motion to suppress evidence that he refused to submit to a blood alcohol test. The state appeals; we affirm. ¹

FACTS

On October 19, 1990, on U.S. Highway 54 in Miller County, Missouri, a pick-up truck driven by the defendant collided with a passenger car occupied by Shanna Needham. As a result of injuries she sustained in the accident, Ms. Needham died the following day.

The defendant was taken to a hospital for treatment of his injuries. While there, he was arrested by a state trooper on a charge of careless and imprudent driving. After arresting the defendant, the trooper asked him to submit to a blood alcohol test. According to the trooper's report, the defendant "refused the blood sample. He stated he couldn't do the test until he spoke with his attorney." No blood test was performed.

The state charged the defendant with two alternative counts of involuntary manslaughter in violation of § 565.024, RSMo 1986. ² By Count I, the state charged involuntary manslaughter under subparagraph .1(2) of the statute, alleging that the defendant, "while under the influence of a combination of alcohol and a drug or drugs caused the death of Shanna L. Needham...." In Count II, the state charged involuntary manslaughter under subparagraph .1(1), alleging the defendant recklessly caused Ms. Needham's death in that, along with other actions, he drove after consuming a combination of alcohol and a dizziness-inducing medication.

By a motion in limine, the defendant sought to suppress evidence that he refused to submit to a blood test. By written order, the trial court sustained the motion concerning the defendant's alleged refusal to take the test. The trial court stated as one of the reasons for its decision the language The trial court observed that § 577.041.1 makes a refusal to submit to a blood test (one of the tests allowed under § 577.020) admissible in cases of driving while intoxicated (§ 577.010) and driving with excessive blood alcohol content (§ 577.012), but it does not make the refusal admissible in an involuntary manslaughter case. Because § 577.041.1 does not specifically make a refusal admissible in a manslaughter case, the trial court concluded that evidence of the defendant's refusal was inadmissible. ³

of the chapter 577 "refusal provision," § 577.041.1, RSMo Supp.1987, which provides, in part, "If a person under arrest refuses upon the request of the arresting officer to submit to any test allowed under section 577.020, then none shall be given and evidence of the refusal shall be admissible in a proceeding under section 577.010 or 577.012."

DISCUSSION AND DECISION

In Point I the state contends that the trial court's reading of § 577.041.1 is "too narrow" in that the statute "does not preclude evidence of a refusal to be admitted in a proceeding under § 565.024 RSMo 1986, to show evidence of driving while intoxicated." We glean from the argument portion of the state's brief and reply brief two basic reasons to support this point on appeal. (1) The result the state seeks was intended by the Missouri General Assembly, and to conclude otherwise would thwart the intent of the legislature. (2) The state's interpretation of the statute is permitted by the United States Supreme Court opinion, South Dakota v. Neville, 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983).

We consider the Neville case first. In Neville, the defendant was charged with driving under the influence of alcohol, a violation of South Dakota Codified Laws Annotated § 32-23-10.1. ⁴ He refused to submit to a blood alcohol test and sought to suppress evidence of his refusal. The trial court ruled that SDCL 32-23-10.1 was unconstitutional and ordered evidence of the defendant's refusal suppressed. See State v. Neville, 312 N.W.2d 723, 724 (S.D.1981). The South Dakota Supreme Court affirmed the trial court's order, holding the statute violated the defendant's federal and state constitutional privileges against self-incrimination. Id. at 724-25. The United States Supreme Court granted certiorari, reversed the judgment of the South Dakota Supreme Court, and held that the admission into evidence of the defendant's refusal to submit to the test did not "offend the right against self-incrimination," 103 S.Ct. at 918, and did not violate his due process rights where he was warned his refusal could lead to the loss of driving privileges even though he was not warned his refusal could be used as evidence at trial. 103 S.Ct. at 923-24.

The statute involved in Neville is similar to § 577.041.1; it permitted evidence of a person's refusal to submit to a blood alcohol test to be admitted at that person's trial on charges of driving while under the influence of alcohol. Thus the United States Supreme Court in Neville answers in the negative a question that is not asked in the case before us: whether the use of § 577.041.1 to allow into evidence refusal to submit to a blood alcohol test at the trial of one charged with driving while intoxicated offends the United States Constitution. Missouri courts already have considered this question. See, e.g., State v. Spain, 759 S.W.2d 871, 875 (Mo.App.1988), and State v. Long, 698 S.W.2d 898, 902 (Mo.App.1985).

Here, however, discussion of Neville is premature. The question we face is whether § 577.041.1 permits evidence of the defendant's refusal of a blood alcohol test to be used at trial in a manslaughter case. We conclude it does not. ⁵

Our task is one of statutory construction. In construing statutes, our primary responsibility is to ascertain the intent of the legislature. Community Fed. Sav. & Loan Ass'n v. Director of Rev., 752 S.W.2d 794, 798 (Mo.banc), cert. denied 488 U.S. 893, 109 S.Ct. 231, 102 L.Ed.2d 221 (1988). Rules or canons of construction exist to assist us in our task of ascertaining legislative intent. McCallister v. McCallister, 809 S.W.2d 423, 427 (Mo.App.1991).

We note certain canons of construction that are helpful in our consideration of the question before us. In construing a statute to determine legislative intent, a court presumes that the legislature was aware of existing declarations of law and the construction of existing statutes when it enacted a law on the same subject. Barnhart v. McNeill, 775 S.W.2d 259, 260 (Mo.App.1989). If possible, a statute's intent should first be ascertained from its plain language. State v. Davis, 675 S.W.2d 410, 415 (Mo.App.1984). The express mention of one thing in a statute implies the exclusion of another. State v. Setter, 721 S.W.2d 11, 15 (Mo.App.1986).

Our consideration of the state of the law at the time the applicable version of § 577.041.1 was enacted must begin with the General Assembly's enactment of Senate Bill 45, 1965 Mo. Laws 670-72. By § 1 of S.B. 45, the General Assembly established Missouri's "implied consent" law. ⁶ Section 3 of S.B. 45 concerned the admissibility into evidence of the results of chemical analysis. Senate Bill 45 also permitted a person to refuse to submit to a chemical test, and the bill provided certain consequences of such refusal. ⁷

The original form of Missouri's "refusal provision," § 564.444.1, set out supra note 7, was construed by the court in City of St. Joseph. In holding that in a prosecution for driving while intoxicated it was error to admit evidence of the defendant's refusal to submit to a breathalyzer test, the western district stated:

The choice allowed a motorist by the Missouri statute to refuse or submit to the test is encumbered only by the possibility of revocation of license, but no other liability. The statute imposes no other consequence. The admissibility of the refusal as evidence of intoxication in a collateral criminal proceeding, therefore, depends upon whether the probative value of such evidence outweighs its prejudicial effect.... We are persuaded the more rational and acceptable view is that the probative value of refusal is insufficient to provide an independent basis for admissibility.

539 S.W.2d at 787.

The "refusal" provision applicable to the case before us, § 577.041.1, RSMo Supp.1987, differs from the version under consideration in City of St. Joseph in two significant aspects: the 1987 version specifies that "evidence of the refusal shall be admissible in a proceeding under section 577.010 or 577.012," and, to the long-standing requirement that the officer inform the person that his license may be revoked if he refuses the test, it adds the requirement that the officer inform the person that "evidence of his refusal to take the test may be used against him." ⁸

Thus we must determine the meaning of the two additional consequences imposed by the amended statute. For guidance, we look to Setter in which a task of the court was to determine the legislature's intent in enacting § 577.039, RSMo 1986, a statutory provision which, like § 577.041.1, contains a specific reference to §§ 577.010 and 577.012. Section 577.039 provides:

An arrest without a warrant by a law enforcement officer, including a uniformed member of the state highway patrol, for a violation of section 577.010 or 577.012 is lawful whenever the arresting officer has reasonable grounds to believe that the person to be arrested has violated the section, whether or not the violation occurred in the presence of the arresting officer; provided, however, that any such arrest without warrant must be made within one and one-half hours after such...