Stewart v. McNeill, WD

• Decision Date: 31 December 1985
• Docket Number: No. WD,WD
• Citation: 703 S.W.2d 97
• Parties: Charles E. STEWART, Appellant, v. Paul S. McNEILL, Jr., Director (substituting for Richard King) Department of Revenue and State of Missouri, Respondents. 36825.
• Court: Missouri Court of Appeals

Page 97

703 S.W.2d 97

Charles E. STEWART, Appellant, v.Paul S. McNEILL, Jr., Director (substituting for Richard King) Department of Revenue and State of MissouriRespondents.

No. WD 36825.

Missouri Court of Appeals Western District.

Dec. 31, 1985.

Andrew J. Gelbach, Warrensburg, for appellant.

Richard L. Wieler, Asst. Atty. Gen., Jefferson City, for respondents.

Before CLARK, C.J., and KENNEDY and BERREY, JJ.

CLARK, Chief Judge.

This is a petition for review of an order made by the Director of Revenue revoking the driver's license of Charles E. Stewart.The revocation was based on Stewart's refusal to submit to a test for blood alcohol content, § 577.041, RSMo.Supp.1984.After a bench trial in which the only testimony was that of the arresting officer, the circuit court affirmed the license suspension and Stewart appeals.

The evidence supporting the judgment in the case was uncontroverted and, consistent with the finding by the trial court, discloses the following.In the late evening of July 14 or the early morning of July 15, 1984, Stewart had been arrested for driving while intoxicated and his automobile had been left parked near the pavement of U.S. Highway 50 in Johnson County.Lawrence Jefferson, a Missouri highway patrol officer, had been alerted to the possibility that Stewart or one of his companions would attempt again that night to drive the Stewart vehicle.At about 3:15 a.m. on July 15, Jefferson observed Stewart enter and start the car and then proceed down a gravel road south from the highway.Jefferson stopped Stewart, placed him under arrest and took him to the Warrensburg police station.

At the station, Stewart was requested to submit to a breathalyzer test.According to Jefferson, the test was sought because Stewart appeared intoxicated.There was a strong odor of alcohol on Stewart's breath, his face was flushed, his clothes were soiled and mussed and his walk was swaying and wobbly.The officer also was aware, as noted above, that Stewart had been arrested for drunkenness some hours earlier.

The test of Stewart's breath was undertaken with a device known as an Alco-Analyzer 2000.With this machine, a green light appears when the subject commences breathing into the mouthpiece and when a sufficient air sample has been taken to perform the test, the light flashes signaling the end of the test.

In the test of Stewart, each time the green light appeared, Stewart withdrew from the machine with the consequence that an insufficient air sample to perform the test was obtained.Three attempts were made to procure a sample of Stewart's breath, but contrary to the officer's directions, Stewart would not breathe into the machine for a long enough period of time to complete the test.After the third unsuccessful attempt and prior warnings to Stewart, a refusal to submit to the test was recorded and these proceedings followed.

A single point of error asserted on this appeal contends the suspension of Stewart's license should have been reversed because there was no competent and substantial evidence of a refusal to take the breathalyzer test.Appellant asserts the evidence shows he did blow into the test machine three times, as evidenced by the illumination of the green light, and any failure of the test was the fault of the police officer or was attributable to a malfunction in the machine.The contention is without merit or substance.

The undisputed evidence in the case was that the Alco-Analyzer 2000 signifies commencement of a breath test by display of a green indicator light which thereafter flashes when an adequate supply of air to perform the test has been received.The evidence was also uncontradicted that each time the green light came on, Stewart withdrew from the machine and despite repeated warnings to continue...