Tarwater v. Dir. Revenue
| Decision Date | 05 October 2021 |
| Docket Number | C/w WD 84008,WD 84007 |
| Citation | 637 S.W.3d 383 |
| Parties | Adam M. TARWATER, Appellant-Respondent, v. DIRECTOR OF REVENUE, Respondent-Appellant. |
| Court | Missouri Court of Appeals |
Bruce B. Brown, Kearney, MO and Timothy D. Tipton, Excelsior Springs, MO, for appellant-respondent.
Annabelle D. Attias, Jefferson City, MO, for respondent-appellant.
Before Division Four: Cynthia L. Martin, Chief Judge, Presiding, Karen King Mitchell, Judge and Gary D. Witt, Judge
The Director of Revenue ("Director") appeals the trial court's judgment setting aside the revocation of Adam M. Tarwater's ("Tarwater") driver's license pursuant to section 577.041.1 The Director argues that the trial court erred in finding that Tarwater did not refuse to take a breath test. Tarwater cross-appeals, arguing that the trial court erred in finding that there were reasonable grounds to believe he was driving a motor vehicle while in an intoxicated or drugged condition. We reverse the trial court's judgment and remand this matter to the trial court with instructions to enter a judgment sustaining the revocation of Tarwater's driving privileges.
On August 24, 2019, Corporal Christian Childs ("Corporal Childs") of the Liberty Police Department responded to the scene of a two-car accident at US Highway 69 and B Highway in Clay County at 11:41 a.m. after being dispatched approximately five to ten minutes earlier. Officer Jeffrey Gartner ("Officer Gartner") was already at the scene when Corporal Childs arrived. Officer Gartner's accident report indicated that the time of the accident was 11:28 a.m., and that he arrived on the scene at 11:35 a.m.
When Corporal Childs arrived on the scene, he saw Tarwater, the driver of one of the vehicles involved in the accident, hand Officer Gartner a bottle of vodka. Officer Gartner told Corporal Childs that Tarwater claimed to have consumed alcohol after the accident.
Corporal Childs spoke with Roy Marrant ("Marrant"), the driver of the other vehicle involved in the crash. Marrant identified Tarwater as the driver of the vehicle that caused the accident. Marrant said he did not observe Tarwater drinking after the accident. Marrant told Corporal Childs that Tarwater tried to persuade Marrant to resolve the accident without calling the police.
Corporal Childs then spoke with Tarwater, who was sitting on the ground staring off into the distance. Tarwater had a strong odor of intoxicating beverages, and watery and bloodshot eyes. Tarwater was cooperative, but his balance was uncertain, his speech was slurred, he was mumbling and speaking very quietly, and he was hiccupping. In response to Corporal Childs's questions, Tarwater said that he did not have any medical conditions and that he was not taking any medications. Tarwater told Corporal Childs that he had a couple of beers before the accident. Corporal Childs asked Tarwater about the bottle of vodka. Tarwater admitted to Corporal Childs that he had drank some vodka, without indicating when. Tarwater admitted that he was driving at the time of the accident.
Corporal Childs asked Tarwater to perform field sobriety tests. Tarwater refused. Corporal Childs arrested Tarwater on suspicion of driving while intoxicated. During a later inventory of Tarwater's vehicle, two additional bottles of vodka were found, both of which were unopened.
After transporting Tarwater to the Liberty jail, Corporal Childs read the implied consent warning to Tarwater at 12:32 p.m. Tarwater asked to speak with a lawyer.
Corporal Childs gave Tarwater access to a telephone and provided Tarwater with a phonebook. Tarwater ultimately called a co-worker. At 12:55 p.m., Corporal Childs asked Tarwater whether he agreed to provide a breath sample. Tarwater agreed, but before providing a sample, Tarwater asked Corporal Childs whether he would be charged with driving while intoxicated if he tested over the legal limit. Corporal Childs informed Tarwater that he was already under arrest for driving while intoxicated whether he provided a breath sample or not. Tarwater then said, "fuck that," and refused to provide a breath sample.
Tarwater's driver's license was revoked pursuant to section 577.041 based on his refusal to submit to a chemical test. Tarwater sought judicial review of the administrative revocation of his driving privilege. At the hearing, Corporal Childs and Tarwater testified, and certified records from the Missouri Department of Revenue3 pertaining to the case, a DVD containing two videos from Corporal Childs's patrol car on the scene, and a DVD containing two videos of Tarwater during the booking process, were entered into evidence. Tarwater testified that he drank one or two beers approximately seven to eight hours prior to the accident, and that he did not feel intoxicated prior to the accident. Tarwater testified that, just before the accident, he left a gas station where he had purchased three pints of vodka. Tarwater testified that after the accident, he drank more than half of one of the three bottles of vodka. Tarwater testified that he began feeling intoxicated as he was speaking to Officer Gartner at the scene, and that by the time Corporal Childs arrived, "the alcohol was taking effect and it's all fairly hazy."
The trial court issued its findings of fact, conclusions of law, and judgment ("Judgment") on July 20, 2020. The Judgment concluded that Tarwater was arrested, and that "[t]here were reasonable grounds to believe [Tarwater] was driving a motor vehicle while in an intoxicated or drugged condition." However, the Judgment also concluded that Tarwater "did not volitionally fail to do what was necessary for the [breath] test[ ] to be performed." In support of this conclusion, the trial court found that Tarwater "consumed a pint of vodka after [a] minor accident;" that the "[b]ooking video shows [Tarwater] too drunk to find [an] attorney in [the] phone book;" that Tarwater was "unable to dial a phone;" and that Tarwater was becoming "progressively more intoxicated during [the] interview." The Judgment concluded that, pursuant to section 577.033, Tarwater was "in a condition rendering him incapable of refusing to take [the] breath test." The Judgment set aside the revocation of Tarwater's driving privilege.
Both the Director and Tarwater appeal.
We review the trial court's judgment in a license revocation case using the same standard employed in other court-tried cases. Ducote v. Dir. of Revenue , 577 S.W.3d 170, 173 (Mo. App. E.D. 2019). We will affirm the trial court's judgment "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." Id. (). We view the evidence and all reasonable inferences drawn therefrom in the light most favorable to the judgment. Goforth v. Dir. of Revenue , 593 S.W.3d 124, 126 n.1 (Mo. App. W.D. 2020).
The Director challenges the Judgment's conclusion setting aside the revocation of Tarwater's driving privileges, and argues that the trial court erred when it relied on section 577.033 to find that Tarwater did not volitionally refuse to perform a breath test. Tarwater challenges the Judgment's conclusion that there were reasonable grounds to believe that he was driving a motor vehicle while in an intoxicated or drugged condition, and argues that there was no evidence to support this conclusion.4 We address the issues separately.
Section 577.033 is not applicable when determining whether a driver has refused to submit to a test pursuant to section 577.041. Instead, refusal to submit to a test pursuant to section 577.041 means declining to submit to a test of one's own volition, determined objectively, and without regard to whether the declination is knowing or remembered.
The Director argues that the trial court's finding that Tarwater did not volitionally refuse to perform a breath test was not based on substantial evidence. The Director argues that section 577.033, which was expressly referred to by the trial court, is not applicable to determining whether a driver refused to submit to a test pursuant to section 577.041 ; that refusal to submit to a test need not be knowing and is not dependent on a driver's subjective mental state; and that video evidence established that Tarwater objectively refused to submit to a breath test of his own volition. We agree.
Any person who operates a vehicle in Missouri is deemed by statute to have impliedly consented to a chemical test to determine his or her blood alcohol content if the person "is arrested for an offense arising out of acts which the arresting officer had reasonable grounds to believe were committed while the person was operating a vehicle ... while in an intoxicated condition." Section 577.020.1(1). If a person under arrest pursuant to section 577.020 refuses upon the request of an officer to submit to a chemical test allowed pursuant to section 577.020, "then evidence of the refusal shall be admissible in any proceeding related to the acts resulting in such ... arrest." Section 577.041.1. "The request of the officer to submit to any chemical test shall ... inform the person that evidence of refusal to take the test may be used against such person." Section 577.041.2. In addition, the officer must also inform the person that "his or her license [will] be immediately revoked upon refusal to take the test." Id. The administrative ramifications of refusing to submit to a chemical test after a driver's arrest are thus distinct from the criminal ramifications of the arrest. Cf. Pagano v. Dir. of Revenue, State of Mo. , 927 S.W.2d 948, 950-51 (Mo. App. E.D. 1996) (...
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