State v. Rotter, WD
| Decision Date | 09 December 1997 |
| Docket Number | No. WD,WD |
| Parties | STATE of Missouri, Respondent, v. Glenn E. ROTTER, Appellant. 53641. |
| Court | Missouri Court of Appeals |
Chris Jordan, Waltz & Jordan, Jefferson City, for appellant.
Robert R. Sterner, Pros. Atty., Callaway County, Mikeal R. Louraine, Asst. Pros. Atty., Fulton, for respondent.
Before ULRICH, C.J.,P.J., and SMART and ELLIS, JJ.
Glenn E. Rotter appeals his convictions following bench trial for driving while intoxicated, section 577.010, RSMo 1994, failure to keep right, section 304.015.2, RSMo 1996, and a term of fifty days in the Callaway County jail and a fine of $100.00. Mr. Rotter raises four issues on appeal. He contends that (1) the trial court lacked jurisdiction; (2) the trial court erred in admitting the first amended information at trial; (3) there was insufficient evidence to convict him of DWI; and (4) insufficient evidence was presented to convict him of failure to keep right. The conviction for violating section 557.010, RSMo, Driving While Intoxicated, is affirmed. The conviction for failing to drive upon the right half of the roadway, section 304.015.2, is reversed.
On February 12, 1995, Holts Summit, Missouri Police Officer Andre L. Cook observed that a car driven by Mr. Rotter was traveling at a high rate of speed. Officer Cook followed Mr. Rotter's car for approximately one-half mile and observed the car cross the center line three times. Mr. Rotter drove the car back into the right hand lane each time the car crossed the center line. Officer Cook testified that there was a bank on the right side of the roadway that if hit could cause a car to bounce back into the roadway depending on one's driving ability. Officer Cook stopped Mr. Rotter and recognized the odor of alcohol on Mr. Rotter's breath. Officer Cook noticed Mr. Rotter's eyes were watery. When Mr. Rotter exited his vehicle at Officer Cook's direction, the police officer noticed that his balance was unsure.
Officer Cook subjected Mr. Rotter to several sobriety tests. The first field sobriety test was a gaze nystagmus test that required Mr. Rotter to focus on Officer Cook's finger without moving his head to watch Officer Cook's finger as the officer moved it on a horizontal plane. Officer Cook testified the gaze nystagmus test has six indicators of inebriation and that Mr. Rotter manifested all six indicators.
The second field sobriety test administered was a one leg stand test which involved having Mr. Rotter stand with his heels and toes together and with his arms at his side. Mr. Rotter was then required to lift one leg approximately six inches off the ground, point his toe, look at his toe and count to thirty by "one thousands." Mr. Rotter swayed before the test began when his heels and toes were together. While performing the test, Mr. Rotter lost his balance, had to stop at eighteen and did not finish the test.
The last field sobriety test was the walk and turn test. Mr. Rotter was required to take nine steps forward touching heel to toe and counting aloud each step. Mr. Rotter then had to turn around in a specific way and take nine steps back to the original starting place. Mr. Rotter did not touch heel to toe on any steps, used his arms, had trouble with balance and did not complete the test. Mr. Rotter then used vulgarities and stated that he was not going to perform any more tests. Based on Mr. Rotter's performance on the field sobriety tests, Officer Cook determined Mr. Rotter was intoxicated and placed him under arrest. Officer Cook had made approximately fifty prior Driving While Intoxicated (DWI) arrests; some of those fifty persons were tested and found to be under the legal limit.
Officer Cook took Mr. Rotter to the Callaway County Jail and read him the Missouri Implied Consent Law. At the conclusion of Officer Cook reading the Implied Consent to Mr. Rotter, Officer Cook asked Mr. Rotter to submit to a breath test. Mr. Rotter refused. The Department of Revenue suspended Mr. Rotter's license based on this refusal. Officer Cook charged Mr. Rotter with municipal violations of speeding, failure to maintain the right side of the roadway and DWI. Officer Cook did not issue any summons to Mr. Rotter in regard to a state violation of DWI or failure to keep right.
On March 9, 1995, Mr. Rotter filed a Petition for Review with the Callaway County Associate Circuit Court to contest the Department of Revenue suspension. The Department of Revenue stipulated that the warning given to Mr. Rotter did not comply with the applicable law, Logan v. Director of Revenue, 906 S.W.2d 888 (Mo.App.1995) overruled, Teson v. Director of Revenue, 937 S.W.2d 195 (Mo. banc 1996). The court granted Mr. Rotter's Petition for Review and found, based on the parties' stipulation, that Mr. Rotter did not refuse to take the breath test. The court ordered the Department of Revenue to remove the suspension from Mr. Rotter's record.
Holts Summit Municipal Attorney, Keith Wenzel, requested the Callaway County Prosecuting Attorney's Office to pursue charges against Mr. Rotter on June 8, 1995. Mr. Wenzel informed the Prosecuting Office that the charges pending against Mr. Rotter in Holts Summit were being dismissed. The State of Missouri filed charges against Mr. Rotter on June 16, 1995. The charges against Mr. Rotter pending in the Holts Summit Municipal Court were formally dismissed on June 28, 1995.
Mr. Rotter filed a motion to dismiss the original information for lack of jurisdiction. Mr. Rotter contended that the court lacked subject matter jurisdiction under section 545.010, RSMo 1994, because the information was filed and summons issued while the Holts Summit Municipal Court had exclusive jurisdiction. Mr. Rotter argued that the municipal court retained jurisdiction until June 28, 1995, when the charges against Mr. Rotter were dismissed.
Mr. Rotter's case went to trial on March 21, 1996. At the commencement of the trial, Callaway County Assistant Prosecutor, Mikeal R. Louraine filed an amended information. The amended information amended Count I of the original information from a class A misdemeanor of DWI to a class B misdemeanor of DWI and amended Count II from failure to drive in a single lane to failure to keep right. Mr. Rotter objected that the amended information was defective because the arresting officer did not issue any summons for a state law violation and because the amended information was neither based on the prosecutor's personal knowledge nor verified. Mr. Rotter also objected to the introduction of evidence concerning his refusal to take a breath test. Mr. Rotter argued that the prior civil judgment of the Associate Circuit Court of Callaway County that Mr. Rotter did not refuse to take the test estopped the state from introducing evidence that Mr. Rotter refused to take the test.
On May 9, 1996, the trial court found Mr. Rotter guilty on both counts. Mr. Rotter was sentenced to fifty days in the Callaway County Jail for the DWI and a fine of $100 for failure to drive on the right side of the roadway. The court denied Mr. Rotter's motion for a new trial. This appeal followed.
Mr. Rotter first argues that the trial court lacked jurisdiction to adjudge the charges against him because the Holts Summit Municipal Court had exclusive jurisdiction over him at the time the original information was filed in Callaway County. Section 545.010, RSMo 1994, governs the jurisdiction of courts to consider charges against a defendant. It states:
All felonies shall be prosecuted by indictment or information, except in cases arising in the land, air or naval forces, or in the militia as provided in section 40.005 to 40.490, RSMo; and all misdemeanors shall be prosecuted by indictment or information in the courts having jurisdiction thereof. But that mode of procedure which shall be first instituted by the filing of the indictment or information for any offense shall be pursued to the exclusion of the other, so long as the same shall be pending and undetermined; and the court in which the prosecution shall be first commenced by the filing therein of the indictment or information, and the issuing of a warrant thereon, shall retain jurisdiction and control of the cause to the exclusion of any other court, so long as the same shall be pending and undisposed of; provided, that misdemeanors for violation of general laws of this state shall in no case be prosecuted in any police or recorder's court, any provision of any special city charter to the contrary notwithstanding; provided, that the last mentioned provision of this section shall not apply to cities having a population of not less than fifty thousand and not exceeding three hundred thousand inhabitants.
§ 545.010, RSMo 1994.
Mr. Rotter's argument fails because it assumes, incorrectly, that section 545.010 regulates all arrests for driving with excessive blood alcohol. The clear, unambiguous language of section 545.010 limits the applicability of that section to arrests for felonies and misdemeanors prosecuted by information or indictment. Section 545.010 does not purport to regulate arrests under municipal ordinances. Furthermore, municipal violations cannot be said to be either felonies or misdemeanors. Strode v. Director of Revenue, 724 S.W.2d 245, 247 (Mo. banc 1987). Because section 545.010 is not applicable to the municipal violations, the Holts Summit Municipal Court did not have exclusive jurisdiction over Mr. Rotter. The state, therefore, remained free to charge Mr. Rotter with state violations of DWI and failing to drive on the right side of the roadway.
Mr. Rotter also suggests that the state's filing of charges against him while the charges filed in the Holts Summit Municipal Court were still pending constituted double jeopardy. The Double Jeopardy Clause provides that no person shall "be subject...
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