Stenzel v. State, Dept. of Revenue

• Decision Date: 13 April 1976
• Docket Number: No. 36706,36706
• Citation: 536 S.W.2d 163
• Parties: Donald W. STENZEL, Petitioner-Appellant, v. STATE of Missouri, DEPARTMENT OF REVENUE, Respondent. . Louis District, Division Three
• Court: Missouri Court of Appeals

Page 163

536 S.W.2d 163

Donald W. STENZEL, Petitioner-Appellant, v. STATE of Missouri, DEPARTMENT OF REVENUE, Respondent.

No. 36706.

Missouri Court of Appeals, St. Louis District, Division Three.

April 13, 1976.

Thomas, Busse, Goodwin, Cullen, Clooney & Ottsen, Donald H. Clooney, St. Louis, for petitioner-appellant.

John C. Danforth, Atty. Gen., Clarence Thomas, Richard L. Wieler, Asst. Attys. Gen., Jefferson City, Courtney Goodman, Jr., Pros. Atty., Clayton, for respondent.

SIMEONE, Presiding Judge.

This is an appeal by petitioner-appellant, Donald W. Stenzel, from an order entered by the circuit court of St. Louis County on August 22, 1974, denying appellant's petition to 'set aside' a revocation of his driver's license by the Director of Revenue. § 564.444, subsection 2, RSMo 1969.

After the appellant was informed by the Director of Revenue that his license would be revoked on July 3, 1974, he filed, on July 1, 1974, his petition to set aside the revocation. In that petition, Mr. Stenzel alleged that on or about June 11, 1974, he was arrested in Crestwood, Missouri, and charged with operating a motor vehicle while intoxicated, and that the Director of Revenue ordered a revocation for one year for an alleged refusal to submit to a chemical test. As grounds for his petition, he alleged that (1) he was 'deprived of a right to counsel after he requested same'; (2) the arresting officer did not have reasonable grounds to believe that he was 'driving in an intosicated (sic) condition'; (3) the affidavit prepared by the arresting officer which was submitted to the director was not 'properly prepared' as required by law; and (4) he did not 'refuse' to submit to the test but did, 'in fact, request to take said test and was refused same by the arresting officer.' Alternatively, he requested limited driving privileges under § 302.309, RSMo 1969.

After a motion to stay revocation was sustained, a hearing was eventually held before the circuit court of St. Louis County on August 19, 1974. At the hearing the arresting officer testified for the state and the appellant testified in his own behalf. Two other witnesses also testified for the appellant.

Officer 'Bill' Schliemann of the Crestwood Police Department was the principal and only witness for the state. He testified that at about 9:30 p.m. on June 11, 1974, he received a 'call of an automobile accident involving injuries' 'at or near Highway 66 and Starling.' Four persons had been injured. Upon arrival at the scene, he 'went over' to Mr. Stenzel's car to see if he was injured. Mr. Stenzel indicated he was not. Officer Schliemann found Mr. Stenzel alone in the vehicle and '(b)ehind the driver's seat (wheel).' The automobile was 'demolished in the front end, the tail lights (were) still on and there was water running out of the radiator.' The officer requested him to 'get out' of the car, and when he did '. . . he had a strong odor of alcohol, and he wobbled when he got out of the car and almost fell down. . . . Wobbled as in staggering.' The officer was 'about two feet' away. According to the officer, Mr. Stenzel walked about thirty feet and '(h)e staggered and wobbled around and was having difficulty keeping his balance.' The officer asked the appellant if he had had anything to drink, and he answered, 'Yes, he had.' The officer then placed him under arrest, asked him if he would be willing to take the intoximeter test and informed him that his license may be revoked upon his refusal to take the test. At the scene, Mr. Stenzel 'gave his consent.' Mr. Stenzel was then 'handcuffed' and conveyed to the police station. At the station, the officer again inquired if he would take the test, but this time, according to Officer Schliemann, 'he refused for the reason that his attorney previously advised him not to.' The officer was then asked: 'Did he at any previous or subsequent time to what you said make any other statement whether he would or would not take the test?' The officer replied: 'No. After that it was just a refusal, a direct refusal. He didn't want to have anything to do with it.'

At no time did the appellant tell the officer that he was driving the motor vehicle.

With the above evidence, the state concluded its case. Thereupon, the appellant's attorney moved to sustain his petition to set aside the revocation because the evidence was insufficient and because the state did not introduce a 'notarized statement' of the officer required under § 564.444, subsection 1. 'You must file this in order to have a revocation.' A long discussion occurred as to the scope of review by the trial court as to which party had the burden to show the existence of the 'sworn statement,' and whether the sworn statement of the officer was properly filed.

After the long colloquy, the officer was cross-examined. On cross-examination, the officer identified his 'affidavit' made to the Director of Revenue which stated (1) that he had reasonable grounds to believe that the arrested person was driving a motor vehicle upon a public highway in an intoxicated condition and (2) that he requested the person to submit to a chemical test but that he refused. This statement, according to the officer, was signed on June 11, but was not notarized until June 13 in the presence of the officer.

On cross-examination, the officer did not remember Mr. Stenzel making any request to take the test at the station and denied that 'another individual' came to him 'saying that he (Stenzel) would like to take the test.' At 11:30 p.m., the officer finally issued an arrest notice to the appellant which was signed by the appellant. On cross-examination, the officer reiterated that at the station he asked Mr. Stenzel if he was ready to take the test, but '(h)e said no. He didn't want me to remind him of what the consequences were.' He also stated that at the scene of the accident, Mr. Stenzel said, 'What the Hell happened, somebody hit me.'

In defense, Mr. Charles Litsch, a good friend of Mr. Stenzel's, testified that he was at the station that evening and spoke to Mr. Stenzel's attorney on the telephone. The attorney advised him to inform Mr. Stenzel to take the test. This was about 11:00 p.m. Mr. Litsch said he 'relayed what you tole (sic) me' and '(t)old him to take the test.' Litsch said he overheard 'Mr. Stenzel request to take the test from this police officer,' but that the officer said '(h)e did not want him to take the test. All he wanted to do was get Stenzel out of there.' The attorney requested Litsch to make a note of that conversation, which was done. According to Mr. Litsch, Mr. Stenzel did not appear to be intoxicated. Mr. Stenzel had been at Litsch's home that evening for dinner from 6:00 to 7:30 p.m. and had had 'two glasses of wine . . ..'

Mr. Stenzel's attorney, Mr. Donald Clooney, testified and corroborated Mr. Litsch's testimony. He stated that Mr. Litsch called him at home and he advised Mr. Litsch to inform Mr. Stenzel to 'take the test . . . and to request it . . .' and make a note of it.

The testimony of Mr. Stenzel was contradictory to that of Officer Schliemann. Mr. Stenzel testified that he requested to take the test, but the officer replied, "All I want to do is get this paper work off and get the Hell out of here." Mr. Stenzel admitted that at one time, presumably at the station, he refused to take the test and stated, 'I didn't' want to take the test--my attorneys advised me to take the test only when the attorney was present.' He changed his mind, however, when he was advised to take the test by his attorney, Mr. Clooney. He admitted that he was behind the wheel of the vehicle when the officer first came upon the scene and remembered telling the officer that he had had a 'couple drinks.'

On August 22, 1974, the trial court denied the petition to set aside the revocation, and in due time appellant filed his after trial motion to set aside the order.

Pending this appeal, we stayed the revocation by order of February 10, 1975.

On this appeal, appellant makes three points. He contends that the trial court erred in finding that (1) there was a reasonable basis for the arresting officer to request that appellant take a chemical test, (2) appellant 'refused' to submit to a chemical test as required by the statute which is a prerequisite to revoking a driver's license, and (3) all of the statutory requirements were fulfilled, 'especially the requirement that the arresting officer submit a sworn affidavit to the Director of Revenue prior to revocation of one's driver's license under Section 564.444, RSMo.'

Appellant, in effect, contends that the court erred because there was not sufficient evidence to conclude (1) that appellant was 'driving on a public highway,' (2) that the officer had reasonable grounds to believe that he was operating a motor vehicle while in an intoxicated condition, and (3) that there was a 'refusal' to submit to the test. He further contends that the state had the burden to show that the officer made a proper 'sworn report' to the Director of Revenue, and in the absence of such proper sworn report, the court could not sustain the revocation of appellant's driver's license.

We turn to the law. This is a court tried case. In such instance, we review both the law and the facts and reach our own independent conclusions, but due regard is given to the opportunity of the trial court to judge the credibility of the witnesses appearing before it. Rule 73.01(3). Wurtz v. Daniel Hamm Drayage Co., 530 S.W.2d 752, 754 (Mo.App.1975). And while Rule 73.01, as amended January 1, 1975, deleted the phrase, 'The judgment shall not be set aside unless clearly erroneous,' cf. Rule 84.16(b), V.A.M.R.Supp.1975, as it previously appeared in Rule 73.01(d), the appellate courts are still admonished not to be 'judicial second guessers' as to trial court findings. ¹ Morris v. Holland, 529 S.W.2d 948, 952 (Mo.App.1975).

Giving effect to the foregoing, we are convinced...