State v. Pike, SC 86083.

CourtUnited States State Supreme Court of Missouri
Citation162 S.W.3d 464
Docket NumberNo. SC 86083.,SC 86083.
PartiesSTATE of Missouri, Respondent, v. Jeremy D. PIKE, Appellant.
Decision Date31 May 2005

Page 464

162 S.W.3d 464
STATE of Missouri, Respondent,
Jeremy D. PIKE, Appellant.
No. SC 86083.
Supreme Court of Missouri, En Banc.
April 26, 2005.
Rehearing Denied May 31, 2005.

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Bruce B. Brown, Kearney, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Richard A. Starnes, Deborah Daniels, Michael J. Spillane, Asst. Attys. Gen., Jefferson City, for respondent.


Jeremy Pike appeals from his convictions for the class D felony of driving while intoxicated, the class A misdemeanor of driving while revoked, and the class C

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misdemeanor of following another vehicle too closely. Pike contends:

1. The provision of section 577.0231 that enhances a driving while intoxicated charge from misdemeanor to felony by including prior DWI offenses from courts where the judge is a lawyer—but not including offenses from non-lawyer judge courts—violates equal protection and due process constitutional guarantees;

2. The arresting officer did not have reasonable suspicion to justify stopping Pike's car and, thus, Pike's Fourth Amendment rights were violated;

3. The evidence was insufficient to support the driving while intoxicated conviction; and

4. The evidence was insufficient to support the conviction for following too closely.

Because of the challenge to the validity of statute, this Court has exclusive appellate jurisdiction. Mo. Const. art. V, section 3.

The judgment of the trial court is affirmed.

Facts and Procedural History

At approximately 2:20 a.m. on August 23, 2003, a Missouri Highway Patrol trooper was stationed, facing east, in a fully marked patrol car, next to 152 Highway in Platte County, Missouri. The double-lane highway was under construction with some of the westbound left lane closed. From behind him, the trooper observed three vehicles traveling east. The trooper was unable at trial to remember the exact speed of the vehicles, but he believed that the vehicles were traveling between 45 and 55 miles per hour. The speed limit was 55 miles per hour. The trooper did not observe the first vehicle use its brakes or slow down drastically when it approached or passed him.

The second vehicle—with Pike driving—was about one car length behind the first vehicle. The third vehicle was about one and one half car lengths behind the second vehicle. The trooper followed the vehicles. At two separate times while following the vehicles, the trooper observed Pike's car cross the fog line by as much as one foot; each time, the car was partially driving on the shoulder.

After straying over the fog line twice, Pike entered the exit ramp for Platte Purchase Drive. The trooper turned on his lights and pursued Pike up the exit ramp, and the car pulled over. The trooper stopped his patrol car and approached Pike's car from the rear. Pike produced a Missouri nondriver identification card. Also in the car were the vehicle's owner and two juveniles.

A video recorder in the patrol vehicle recorded the traffic stop. The trooper asked Pike to get out of the car and Pike complied. Pike appeared to be chewing gum as he walked to the patrol car.

In the patrol car, the trooper observed that Pike's eyes were watery, glassy, red, bloodshot, and "somewhat staring." The trooper smelled a strong odor of alcohol from Pike, and Pike admitted that he had had four beers. Pike's speech was "somewhat slurred and mumbling." Based on these observations, the trooper suspected that Pike was intoxicated.

Pike was asked to perform some field sobriety tests, and he complied. At the trooper's direction, the tests were performed behind the highway patrol car; the tests were not recorded by the patrol car's

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video camera. The trooper testified that he requested the tests be performed behind the highway patrol car, rather than between the two vehicles, because he was the only officer on the scene, there were still three people in the car Pike had been driving, and the patrol vehicle would serve as a barrier between himself and the passengers in the stopped car.

Pike failed all six possible points on the horizontal gaze nystagmus test.2 The trooper then asked Pike to recite the alphabet from C to W, but Pike recited from G to Z. During the Romberg balance test, Pike failed to estimate when 30 seconds had elapsed within the 4-5 second standard deviation cutoff for passing the test. Pike also failed the one-leg stand test by using his hands to balance, stepping down two times, and swaying. A preliminary breath test administered at the scene was positive for alcohol; results of the preliminary breath test are proper for determining whether there is probable cause for an arrest but are inadmissible as evidence of blood alcohol content. Section 577.021.

The field sobriety tests strengthened the trooper's suspicions that Pike was intoxicated, and Pike was arrested for driving while intoxicated at approximately 2:47 a.m. Pike was placed in the patrol vehicle while the car Pike had been driving was searched. A cooler containing beer was found in the car.

At the Platte County jail, the trooper read Pike the Miranda3 warnings and the "implied consent" warnings. See section 577.020.1. Pike agreed to take a breath test to determine his blood alcohol level. Pike said he had had five beers at a party. The test was administered at 4:09 a.m., with a result of .121 percent, which was over the legal limit of .08 percent. The result of the breath test taken at the county jail, if the test was properly administered, is admissible to support a conviction. Section 577.020.

The parties stipulated to the introduction of Pike's driving record showing that his license was revoked at the time of the stop. Pike also stipulated that he had two prior driving while intoxicated convictions, one a municipal conviction from Oakview, Missouri, and one from Platte County.

Pike filed a motion to suppress and a motion to declare section 577.023 unconstitutional. The judge overruled both of these motions after a hearing. During a bench trial in April 2004, Pike renewed his motion to suppress and objected to the introduction of any evidence obtained after the vehicle stop. The objection was overruled, and Pike was found guilty of felony driving while intoxicated, driving while his license was revoked, and following too closely. Pike was found not guilty of possession of alcohol by a minor.


1. Constitutionality of section 577.023.1

Pike argues that section 577.023.1 is unconstitutional in that it violates

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the equal protection and due process clauses of the United States and Missouri constitutions. All statutes are presumed to be constitutional; a statute will not be held unconstitutional unless "it clearly and undoubtedly contravenes the constitution." United C.O.D. v. State, 150 S.W.3d 311, 313 (Mo. banc 2004). A statute will be enforced unless it "plainly and palpably affronts fundamental law embodied in the constitution." Id. Doubts will be resolved in favor of the constitutionality of the statute. Id.

Equal Protection

Pike argues that section 577.023 violates his right to equal protection guaranteed by the United States and Missouri Constitutions.5 Section 577.023.3 requires a court to enhance a "persistent offender's" driving while intoxicated conviction from a misdemeanor to a felony. A "persistent offender" is defined as someone who has two prior convictions for intoxication-related traffic offenses within ten years of the charged offense. Section 577.023.1(2)(a). To be subject to the enhanced penalty as a persistent offender, each prior offense must have been a "violation of state law or a county or municipal ordinance, where the judge in such case was an attorney and the defendant was represented or waived the right to an attorney in writing." Section 577.023.1(1) (Emphasis added). Therefore, only offenders whose prior convictions were heard before a lawyer judge are subject to section 577.023.3's enhancement to a class D felony.

Pike's driving while intoxicated charge was enhanced to a felony based on section 577.023 and Pike's two prior convictions, one for a state law violation and one for a municipal ordinance violation where the judge was a lawyer. Pike argues that the disparate treatment applied to those with prior convictions before a lawyer judge violates the equal protection clause.

The first step in considering an equal protection claim is to determine whether the challenged classification operates against a suspect class or impinges upon a fundamental right. In re Marriage of Kohring, 999 S.W.2d 228, 231-32 (Mo. banc 1999). If the statute does not discriminate against a suspect class and does not implicate a fundamental right, then the rational basis test of review will be applied. Id. Pike does not claim to belong to a suspect class, nor does one exist. Pike contends that section 577.023 involves a fundamental right. Fundamental rights are those rights that "are `deeply rooted in this Nation's history and traditions,' and `implicit in the concept of ordered liberty.'" In re Marriage of Woodson, 92 S.W.3d 780, 783 (Mo. banc 2003); Riche v. Dir. of Revenue, 987 S.W.2d 331, 336 (Mo. banc 1999).

Pike argues that a fundamental right is implicated where an offense is "transformed from a misdemeanor to a felony." However, an enhanced sentence under section 577.023.3 is not a new offense. See Almendarez-Torres v. U.S., 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Rather, proof of prior convictions under section 577.023 "merely serves to authorize enhanced punishment for the underlying offense charged, if the defendant is found guilty." State v. Cullen, 39 S.W.3d 899, 904 (Mo.App.2001). Since section 577.023 creates no new offense, no fundamental right is implicated by the enhancement provision, and the rational basis test applies.

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The oft-stated rational basis test requires only that the...

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