State v. Myers, 21049
| Decision Date | 17 March 1997 |
| Docket Number | No. 21049,21049 |
| Citation | 940 S.W.2d 64 |
| Parties | STATE of Missouri, Respondent, v. Anola F. MYERS, Appellant. |
| Court | Missouri Court of Appeals |
Judith C. LaRose, Asst. Public Defender, Columbia, for appellant.
Jeremiah W. (Jay) Nixon, Attorney General, Theodore A. Bruce, Asst. Atty. Gen., Jefferson City, for respondent.
A jury found Appellant guilty of the class D felony of driving while intoxicated. §§ 577.010.1 and 577.023.3, RSMo 1994. The trial court imposed a prison sentence. This appeal followed.
Appellant's sole point relied on maintains the evidence was insufficient to support the conviction in that the only evidence the State presented to prove intoxication was the arresting officer's testimony that Appellant failed the "horizontal gaze nystagmus" ("HGN") test. Citing State v. Wheeler, 764 S.W.2d 523 (Mo.App. W.D.1989), Appellant asserts: "Missouri does not recognize this test as a legitimate tool in determining intoxication."
What Wheeler actually said was: "Missouri has yet to recognize the [HGN test] as a legitimate tool in determining intoxication." Id. at 524. In Wheeler, the State offered no foundation evidence, scientific or medical, as to the acceptance of the HGN test in the scientific community. Id. Emphasizing the absence of such evidence, Wheeler held:
"The determination of whether this test is to be recognized and accepted in this state must wait for another case, hopefully, a case in which both parties will fully develop the issues."
Such a case came four years later: State v. Hill, 865 S.W.2d 702 (Mo.App. W.D.1993). The evidence regarding scientific acceptance of the HGN test is set forth there, id. at 703-04, and need not be repeated here. Hill held:
In the instant case the arresting officer had been trained in administering the HGN test. Appellant does not challenge the officer's qualifications to conduct the test.
Furthermore, contrary to Appellant's assignment of error, her failure of the HGN test was not the only evidence she was intoxicated. The arresting officer testified Appellant had bloodshot, watery eyes and a "moderate smell of alcohol coming from her breath."
Additionally, the officer asked Appellant to perform other field sobriety tests and to submit to a breathalyzer test. Appellant refused. Her refusal was admissible as evidence of...
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State v. Rose, WD 59925.
...State v. Link, 25 S.W.3d 136, 144-45 (Mo. banc 2000).5 Subsequently, this court's Southern District adopted Hill in State v. Myers, 940 S.W.2d 64, 64-5 (Mo.App. S.D.1997). Also, this court's Eastern District has relied on Hill. See Parrish, 11 S.W.3d at 654-55 (holding that, in a license re......
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State v. Burks
...(2009); State v. Royal, 277 S.W.3d 837, 840 (Mo.App.2009); State v. Scholl, 114 S.W.3d 304, 308 n. 2 (Mo.App.2003); State v. Myers, 940 S.W.2d 64, 65 (Mo.App.1997). The evidence that Defendant refused to submit to a pre-arrest PBT was cumulative and furnishes no ground for reversal. See Fra......
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State v. Hall
...of intoxicants on defendant's breath). Further, Appellant refused to fully perform the requested sobriety tests. See State v. Myers, 940 S.W.2d 64, 65 (Mo.App.1997) (holding that a refusal to perform sobriety tests "was admissible as evidence of intoxication"). Additionally, Officer Trusler......
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State v. Poole
...results below 0.08%, and defendant's argument that physical injuries affected his performance on field sobriety tests); State v. Myers, 940 S.W.2d 64, 65 (Mo.App.1997) (arresting officer's opinion that defendant was intoxicated was sufficient evidence of intoxication to support DWI convicti......