Teson v. Director of Revenue, State of Mo.

• Decision Date: 17 December 1996
• Docket Number: No. 78991,78991
• Citation: Teson v. Director of Revenue, State of Mo., 937 S.W.2d 195 (Mo. 1996)
• Parties: Thomas J. TESON, Respondent, v. DIRECTOR OF REVENUE, STATE OF MISSOURI, Appellant.
• Court: Missouri Supreme Court

Page 195

937 S.W.2d 195

Thomas J. TESON, Respondent, v. DIRECTOR OF REVENUE, STATE OF MISSOURI, Appellant.

No. 78991.

Supreme Court of Missouri En Banc.

Dec. 17, 1996.

Jeremiah W. (Jay) Nixon, Attorney General, Karen King Mitchell, Paul Wilson, Assistant Attorneys General, James A. Chenault, III, Special Assistant Attorney General, Mo. Dept. of Revenue, Jefferson City, for appellant.

Timothy J. Melenbrink, Union, for respondent.

ROBERTSON, Judge.

Section 577.041.1, RSMo 1994, requires that a law enforcement officer arresting a person for driving while intoxicated "shall inform the person ... that his license shall be immediately revoked upon his refusal to take the test [to determine the alcohol content of his blood]." When an arrestee refuses to submit to a chemical test and the arresting officer fails to use the word "immediately" in warning the arrestee of the consequences of refusal, may the Director of Revenue nevertheless revoke the arrestee's driving privilege?

We hold that section 577.041.1 requires a law enforcement officer who arrests a person for driving while intoxicated to give the warning mandated by the statute when the arrestee refuses to take a test to determine blood alcohol content. When the arresting officer fails to use the words of the statute in reciting the warning, the test to determine whether an arrestee's decision to refuse to submit to a chemical test is an informed one is whether the warning was so deficient as actually to prejudice the arrestee's decision-making process. Finding no prejudice to the arrestee in this case, we reverse the judgment of the trial court and remand for entry of orders denying respondent's petition for review and dissolving the injunction that previously forbad the Director of Revenue from revoking respondent's driving privilege.

I.

By agreement of the parties, the facts are taken entirely from the arresting officer's report and certified records of the Department of Revenue pertaining to this case.

At 1:46 p.m. on July 15, 1995, Washington, Missouri, Police Officer Mike Stapp stopped a pick-up truck he had seen weaving back and forth across the roadway. He approached the driver, Thomas Teson, and smelled a strong odor of alcohol on Teson's breath. Officer Stapp performed field sobriety tests that revealed Teson's slurred speech, uncertain gait, his inability to touch his fingertips to his thumb, his dilated pupils, his bloodshot eyes, and the presence of nystagmus in each eye. Not surprisingly, Teson admitted to drinking four or five beers earlier in the evening.

On the basis of these observations, Officer Stapp arrested Teson and took him to the Washington police station. There, Officer Stapp asked Teson to take a breathalyzer test. Teson refused. Officer Stapp read Teson the implied consent form warnings from Department of Revenue Form 2389:

You are under arrest for driving while intoxicated. To determine the alcohol-drug content of your blood, I am requesting you submit to a chemical test of your breath. If you refuse to take the test, I must file this sworn affidavit to the Director of Revenue who shall revoke your driver's license for one year. Evidence of your refusal to take the test may be used against you in prosecution in a court of law. Having been informed of the reasons for requesting the test, will you take the test?

Teson refused to take the test. According to the police report, Officer Stapp read the statement to Teson two more times over an approximately thirty-minute period. Each time Teson refused to submit to the chemical test. In addition to the form warning, Officer Stapp asked Teson "if he understood that he would lose his license if he didn't take the test." Moreover, Department of Revenue Form 2389 requires Officer Stapp to affirm that he informed "the arrested person that ... his/her driver's license shall be revoked for one year upon his/her refusal to take the test." Officer Stapp filed the report showing Teson's refusal with the Director of Revenue.

In due course, Teson received notice from the Director that she had revoked his driving privilege. Teson filed a petition for review of the Director's order revoking his driving privilege, claiming that the revocation was arbitrary and capricious because, among other reasons, the arresting officer "never informed Plaintiff [Teson] that Plaintiff's license may be revoked upon Plaintiff's refusal to take said [chemical] test." (Emphasis added.) ¹ The trial court read Logan v. Director of Revenue ² to hold that failure of law enforcement personnel to use the word "immediately" in warning an arrestee of the consequences of refusal to submit to a chemical test renders the refusal non-consensual. Expressing disagreement with Logan, the trial court nevertheless "reluctantly" granted Teson's petition for review and enjoined the Director from revoking Teson's license.

The Director appealed. The Court of Appeals, Eastern District, adopted a substantial compliance test, found the warning given sufficient, reversed the judgment of the trial court and certified the case to this Court on the basis of the conflict between its decision and the western district's decision in Logan. We have jurisdiction, ³ reverse the trial court, and overrule Logan as wrongly decided.

II.

As previously noted, section 577.041.1 requires the arresting officer to "inform the person that ... his license shall be immediately revoked upon his refusal to take the [chemical] test." On appeal, the Director urges that a warning that substantially complies with the statutory warning is sufficient. Teson argues that the failure of law enforcement personnel to use the word "immediately" renders the warning to the arrestee ineffectual, the arrestee's decision to refuse the test uninformed, and the Director's subsequent revocation of the driving privilege invalid.

This case does not turn on the failure of Officer Stapp to mimic the statute with exact precision. No court has so held. Indeed, Logan held that an arresting officer "need not use the exact wording of the statute," but could use " 'any language which clearly conveys the message that the motorist's license shall be immediately revoked upon refusal to take the test.' " ⁴ Instead, Teson complains that failure to use the word "immediately" or some equally striking synonym left Teson uncertain as to his fate should he refuse the test.

The purpose of the warning provided in section 577.041.1 is to inform an apparently inebriated driver of the consequences that follow a refusal to consent to a chemical test to determine blood alcohol content. Ignoring the internal inconsistency of a system that demands that inebriated persons be given information from which to render an informed decision, the statute demands that a law enforcement officer provide an arrestee with information upon which the arrestee may make a voluntary, intentional and informed decision as to whether or not to submit to the chemical test. If the purpose of the warning is to provide information, a warning is sufficient for purposes of due process unless the words used either (1) fail to inform the arrestee of all of the consequences of refusal or (2) mislead the arrestee into believing that the consequences of refusal are different than the law actually provides. In each of these instances, the warning fails because it prejudices the arrestee's decisional process and, therefore, renders the arrestee's decision uninformed. Uninformed decisions are non-consensual.

Prior to 1993, section 577.041 required the arresting officer to inform the arrestee that the driver's license "may be revoked" for failure to submit to the chemical test. In 1993, the legislature removed the "may be revoked" language in favor of the current "shall be immediately revoked" verbiage. In Bennett v. Director of Revenue ⁵ and in Vinson v. Director of Revenue, ⁶ the arresting officer's warning said that the Director "may" revoke the arrestee's license (Bennett ) or that the license "might be" revoked (Vinson ). Each of these warnings ignored the 1993 amendments to section 577.041.1. More important, each warning deviated from the statute by stating the consequences of refusal in terms of a possibility instead of the definite certainty that the 1993 amendment mandated. Thus, both the Bennett and Vinson warnings bore the potential of misleading the arrestee into believing that the consequences of refusal were different than the law actually provided.

In this case, Officer Stapp's warning tracked the 1993 amendment with the exception of using the word "immediately." Officer Stapp warned Teson three times that the Director "shall revoke your license" if Teson refused the test. In addition, Stapp departed from the Department of Revenue's forms to ask Teson "if he understood that he would lose his license if he didn't...