Sutton v. Dir. of Revenue

• Decision Date: 07 July 2000
• Citation: 20 S.W.3d 918
• Parties: (Mo.App. S.D. 2000) Paul A. Sutton, Respondent, v. Director of Revenue, State of Missouri, Appellant. 23150 0
• Court: Missouri Court of Appeals

20 S.W.3d 918 (Mo.App. S.D. 2000)

Paul A. Sutton, Respondent, v. Director of Revenue, State of Missouri, Appellant.

23150

Missouri Court of Appeals Southern District

07/07/2000

Appeal From: Circuit Court of Jasper County, Hon. Richard D. Copeland

Counsel for Appellant: Evan J. Buchheim

Counsel for Respondent: Joe Crosthwait

Opinion Summary: None

Prewitt, J. and Garrison, C.J., concur.

Robert S. Barney, Judge

The Director of Revenue ("Director"), appeals the judgment of the circuit court finding that Paul A. Sutton ("Petitioner"), did not unequivocally refuse to submit to a chemical test as prescribed by section 577.041.1 and ordering the reinstatement of petitioner's license to operate a motor vehicle. See generally section 577.041.¹

In his sole point relied on, Director maintains that the trial court erred in setting aside the revocation of Petitioner's license to operate a motor vehicle. He maintains that at trial he had proven all the elements necessary to revoke Petitioner's driver's license. He asserts that the trial court misinterpreted and misapplied the law and that the trial court's findings were against the weight of the evidence.

On the other hand, Petitioner maintains that Director failed to prove a prima facie case that Petitioner refused to submit to a chemical test. He argues that at the hearing the Director offered only hearsay testimony to support the refusal and that Petitioner had, indeed, submitted to a chemical test. Therefore, Petitioner maintains that the trial court did not err in "restraining the Director from revoking" Petitioner's license to operate a motor vehicle.

"The trial court's decision must be affirmed unless there is no substantial evidence to support it; it is against the weight of the evidence; or it erroneously declares or applies the law." Benson v. Director of Revenue, 937 S.W.2d 768, 769 (Mo.App. 1997).

There are three things that the trial court must find in order to uphold the revocation of a driver's license for failure to submit to chemical testing pursuant to section 577.041: (1) that the driver was arrested; (2) that the officer who arrested the driver had reasonable grounds to believe that the driver was driving while intoxicated; and (3) that the driver refused to submit to a chemical test.

Id. at 769-70. "The trial court must reinstate driving privileges if it determines that one or more of these requirements has not been met." Id. at 770.

There is no mysterious meaning to the word "refusal." In the context of the implied consent law, it simply means that an arrestee, after having been requested to take the breathalyzer test, declines to do so of his own volition. Whether the declination is accomplished by verbally saying, 'I refuse', or by remaining silent and just not breathing or blowing into the machine, or by vocalizing some sort of qualified or conditional consent or refusal, does not make any difference. The volitional failure to do what is necessary in order that the test can be performed is a refusal.

Id. (quoting Spradling v. Deimeke, 528 S.W.2d 759, 766 (Mo. 1975)); see McMaster v. Lohman, 941 S.W.2d 813, 817 (Mo.App. 1997).

According to the record, Petitioner was involved in an automobile accident at about midnight on December 19, 1998. Officer Gary McKinney testified at trial, and the stipulated "police officer's report" so reflected, that while investigating the accident the officer smelled a moderate odor of intoxicants coming from Petitioner and noted that Petitioner's balance was impaired and his speech was slurred. Petitioner admitted to ingesting two beers just before the accident. Petitioner failed several field sobriety tests, including the Horizontal Gaze Nystagmus test, the one-leg stand test, and the walk and turn test. Petitioner submitted to a preliminary breathalyzer test (PBT), which indicated that a "high level of alcohol was present in his blood." Petitioner was then arrested and transported to the police station where officer McKinney advised Petitioner of his rights under the "Implied Consent Law," see section 577.041.1, together with his Miranda "rights." At the police station, Officer McKinney requested a breath sample from Petitioner to determine his blood alcohol content. While the police report recited that Petitioner "complied" with this request, the import of the police officer's report is that after Petitioner was granted "several opportunities to give an adequate sample," he did not and he was "marked" as "refusing the test."

This Court immediately observes that the Director satisfied the first two statutory elements as set out in Benson, supra. It is clear that Officer McKinney had reasonable grounds to believe that Petitioner was driving while intoxicated and that he was thereafter arrested. "Probable cause for arrest exists when an officer possesses facts which would justify a person of reasonable caution to believe that an offense has been or is being committed and that the individual to be arrested committed it." Chancellor v. Lohman, 984 S.W.2d 857, 858 (Mo.App. 1998) (the deputy smelled a strong odor of alcohol, Chancellor was unsteady and had difficulty keeping his balance, Chancellor nearly fell twice, and his speech and movements were slow and unsure); see also examples set out in Duffy v. Director of Revenue, 966 S.W.2d 372, 380 (Mo.App. 1998).

Additionally, after reviewing the record, we determine that Petitioner's argument that the Director only offered hearsay testimony in attempting to prove that Petitioner had refused a chemical test has no merit.

We first observe that at the commencement of the trial both parties stipulated to the "police officer's report." It is apparent from our review of the legal file that the "police officer's report" is composed of the alcohol influence report ("form 2389"), together with an annexed narration of Officer McKinney (as referenced by page four of form 2389). Petitioner's attorney referred to the report extensively throughout the course of the trial and cross-examined Officer McKinney extensively from the report. As a general rule, "[s]tipulations 'are controlling and conclusive, and courts are bound to enforce them.'" City of Jennings v. Division of Emp. Sec., 943 S.W.2d 330, 335-36 (Mo.App. 1997) (quoting Pierson v. Allen, 409 S.W.2d 127, 130 (Mo. 1966)); see also Wilson v. Shanks, 785 S.W.2d 282, 285 (Mo. banc 1990) ("[a]ny complaint that the report was hearsay was obviated when plaintiffs' attorney stipulated that the report was part of [the] business records"). "When a written document is admitted into evidence, it is admitted in its entirety, absent a request that only portions be admitted." Sullivan v. Director of Revenue, 980 S.W.2d 339, 341 (Mo.App. 1998).

Secondly, the police officer's report is not the only evidence that Petitioner refused to give an adequate sample of his breath. At trial, Officer McKinney was asked by the prosecutor whether he had asked Petitioner "to perform a chemical breath analysis?," and Officer McKinney answered, "Yes, Sir." The prosecutor then inquired, "And did he perform that?", whereupon Officer McKinney answered, without objection, "No, he did not." Officer McKinney also related without objection that Petitioner "did agree to take the test; however, upon administering the test, he would not give an adequate sample." "Where evidence is admitted without objection, it may be properly considered, even if the evidence would have been excluded by a proper objection." Benson, 937 S.W.2d at 770. Officer McKinney then related that "Sergeant Pachlhofer was the one that administered the test . . . ." Whereupon Petitioner's attorney stated, "I object to Mr. --anything that Mr. Pachlhofer would say." The court sustained the objection. However, Petitioner's attorney made no motion to strike any of the prior testimony of Officer McKinney on the basis of hearsay or otherwise. "[S]ustaining an objection after a witness answers a question does not have the effect of striking the answer in the absence of a motion to strike." Simmons v. Director of Revenue, 3 S.W.3d 897, 900 (Mo.App. 1999).

The prosecutor then continued, "You witnessed the refusal to test?" Officer McKinney answered, "That is correct." The following colloquy then took place between Petitioner's attorney and Officer McKinney.

Q. [Petitioner's Attorney]: Okay. Then [the police officer's report] says, "However, [Petitioner] would not give an adequate sample." How do you know he wasn't giving an adequate sample?

A. [Officer McKinney]: Sergeant Pachlhofer administered the test.

Q. No, no, no. I'm asking you. You. You're sitting here on the witness stand.

A. Yes, sir.

Q. How do you know he didn't give an adequate--

A. As I observed him giving the sample, he was blowing around the tube, which I could tell by the sound of the air passing around the tube...