State v. Setter

• Decision Date: 07 October 1986
• Docket Number: No. WD,WD
• Parties: STATE of Missouri, Appellant, v. Jerome E. SETTER, Respondent. 38151.
• Court: Missouri Court of Appeals

Page 11

721 S.W.2d 11

STATE of Missouri, Appellant, v. Jerome E. SETTER, Respondent.

No. WD 38151.

Missouri Court of Appeals,

Western District.

Oct. 7, 1986.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Nov. 25, 1986.

Application to Transfer Denied Jan. 13, 1987.

Albert A. Riederer, Pros. Atty., Robert Frager, Asst. Pros. Atty., Kansas City, for appellant.

John E. Redmond, Kansas City, for respondent.

Before LOWENSTEIN, P.J., and MANFORD and GAITAN, JJ.

MANFORD, Judge.

This is an appeal by the State of Missouri from a judgment in the form of an order suppressing evidence in a criminal proceeding. The appeal is authorized and presented pursuant to § 547.200, RSMo Supp.1984. The judgment is reversed and the cause is remanded with directions.

Appellant alleges that the trial court erred in sustaining respondent's motion to suppress. Appellant presents two points specifically which, in summary, charge that the trial court erred (1) in applying § 577.039, RSMo Supp.1984, because said statute has no application to proceedings other than driving under the influence of intoxication cases, and (2) in that the warrantless administration of a blood alcohol test was constitutionally permissible.

The pertinent facts are as follows:

At approximately 1:23 a.m. on May 9, 1985, Jarrett Jones, a Kansas City, Missouri police officer, was dispatched to the scene of a vehicular collision at the intersection of 51st Street and Noland Road in Kansas City, Missouri. The officer arrived at 1:47 a.m. and observed a white/blue 1983 Ford pickup truck facing southwesterly but across the northbound lane of Noland Road. He also observed a person lying on the roadway just west of the passenger's side of the pickup truck, and another person lying on the roadway side of the driver's side. He also observed a green 1973 Dodge pickup truck facing northwesterly but across the northbound lane of Noland Road. From his investigation, he determined that the Ford pickup truck had been driven by one Michael Settle. The party he had previously observed on the driver's side of the Ford pickup truck was identified as respondent. The officer, from his investigation, learned that respondent had been driving the Dodge pickup.

Respondent was taken to St. Luke's Hospital in Kansas City, Missouri, by helicopter. The officer subsequently proceeded to the emergency room of the hospital. At the hospital, the officer observed respondent and as he was being treated by nurses and doctors, respondent was combative with them. The officer was able to observe a faint odor of alcohol on respondent's breath. Later at trial, the officer, over objection, was permitted to state that he had reasonable grounds to believe that respondent was intoxicated while operating his pickup truck. It should be noted that while en route to the hospital, the officer had been advised that the other driver, Michael Settle, had died as a result of the collision.

During his first encounter with respondent at the hospital, the officer placed respondent under arrest and then read the Miranda warning to respondent. The officer further requested that respondent submit to having his blood drawn to determine the blood alcohol content. The officer testified later that while respondent was conscious, he (the officer) noticed that respondent did not understand what he (the officer) was saying. Respondent had no conversation with the officer.

There was no indication from respondent that he consented to the taking of a blood sample or that he refused the taking of the blood sample. The officer then directed a doctor to take a blood sample from respondent. This was accomplished in the presence of the officer. The officer then sealed the blood sample and forwarded it to the Regional Crime Laboratory. The record indicates that respondent was placed under arrest prior to the Miranda warning, and prior to the officer reading to respondent the DWI waiver and the order for a blood sample. The blood sample was ordered and the sample secured at approximately 4:00 the morning of the accident, or some three and one-half hours after the officer was dispatched to the scene. The officer also stated that he issued no traffic summons to respondent because he had to get the results of the blood tests prior to issuing the summons. The officer was asked if he set a court date, and he responded "no" since he could not set a court date on manslaughter cases.

Respondent was indicted by a grand jury on a charge of manslaughter. By agreement and through his attorney and the prosecutor, respondent voluntarily surrendered to avoid arrest on the manslaughter charge. The record is clear and the parties do not dispute the fact that the officer did not secure the blood sample under a warrant, nor did the officer effect respondent's arrest under warrant. During the prosecution of the manslaughter charge, respondent filed a motion to suppress the blood sample previously secured at the direction of the officer. The trial court, in sustaining the motion, entered the following order judgment:

The Court this day takes up Defendant's motion to suppress. After having duly considered the evidence heard by the Court on January 23, 1986 and the briefs filed by counsel, the Court hereby SUSTAINS said motion for the reason that the arrest of the Defendant, if any, was made more than 1 1/2 hours after the alleged violation, contrary to the requirement of Sec. 577.039 R.S.Mo. Accordingly, there was no implied consent on the part of the Defendant to take the blood sample pursuant to Sec. 577.020.1 R.S.Mo.

It is therefore ORDERED that evidence of the blood sample taken from the Defendant be suppressed and adjudged inadmissible at the trial of this case.

In support of its point (1), appellant argues that § 577.039 does not apply to arrests for involuntary manslaughter. Appellant's position is that there is no ambiguity within the language of § 577.039, and thus it plainly applies only to offenses prescribed by § 577.010 (driving while intoxicated) and § 577.012 (driving with excessive blood alcohol content).

Section 577.039 reads as follows:

577.039. Arrest without warrant, lawful, when

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 claimed violation occurred.

In further support of this argument, appellant cites to State v. Harris, 670 S.W.2d 73, 78 (Mo.App.1984). This question was presented to this court in Harris ¹ and this court declared:

The first of the four subpoints under point two preserved for appellate review charges that the results of the breathalyzer test should have been suppressed because the test was administered some three and one-half (3 1/2) hours after the fatal accident. Defendant's attendant argument is highly convoluted and the only authority cited for its support is § 577.040, RSMo 1978 (in effect both at the time of the offense and at the time of trial). Seizing upon the language in § 577.040, supra, that "[A]n arrest without a warrant [for the offense of 'driving while intoxicated', § 577.010, RSMo 1978] must be made within one and one-half hours after such claimed violation occurred", defendant summarily contends that a breathalyzer test administered more than one and one-half hours after the fatal accident was inadmissible. Defendant's argument is untenable for several reasons. First, defendant was arrested for manslaughter rather than driving while intoxicated. Second, defendant, by extrapolation, has sought to extend the meaning of the referred to statutory language far beyond the explicit intent and purpose of the statute. (Omitting footnotes)

Respondent argues that Harris must be distinguished because in Harris, the defendant, after a lapse of three hours, voluntarily submitted to a chemical test. Respondent contends that in Harris, the defendant was charged under the former section § 565.005, RSMo 1978, which reads, "Every killing of a human being by the act, procurement or culpable negligence of another, not herein declared to be murder or excusable or justifiable homicide shall be deemed manslaughter."

Respondent points out that operating a motor vehicle while intoxicated under the prior statute was not an issue of manslaughter in Harris, nor was implied consent. Respondent further urges that since he was charged under § 565.024, RSMo Supp.1984, the state has the burden of proving that a person charged thereunder operated a motor vehicle in an intoxicated condition. Section 565.024 reads:

565.024. Involuntary manslaughter, penalty

1. A person commits the crime of involuntary manslaughter if he:

(1) Recklessly causes the death of another person; or

(2) While in an intoxicated condition operates a motor vehicle in this state and, when so operating, acts with criminal negligence to cause the death of any person; or

(3) Causes the death of an unborn quick child by any injury to the mother of such child which would be murder if it resulted in the death of such mother.

2. Involuntary manslaughter is a class C felony.

Respondent then cites to § 577.001.2, which reads:

577.001. Chapter definitions

* * *

* * *

2. As used in this chapter, a person is in an "intoxicated condition" when he is under the influence of alcohol, a controlled substance, or drug, or any combination thereof.

Respondent further cites to § 577.020.1, and from that asserts that § 577.039 is within § 577.020.1. Section 577.020.1 reads:

577.020. Chemical tests for alcohol content of blood-consent implied-administered, when, how

1. Any person who operates a motor vehicle upon the...