Urbaniak v. Dir. of Revenue

• Decision Date: 06 September 2022
• Docket Number: WD 84569
• Citation: 651 S.W.3d 853
• Parties: Weston URBANIAK, Appellant, v. DIRECTOR OF REVENUE, Respondent.
• Court: Missouri Court of Appeals

651 S.W.3d 853

Weston URBANIAK, Appellant,

v.DIRECTOR OF REVENUE, Respondent.

WD 84569

Missouri Court of Appeals, Western District.

OPINION FILED: September 6, 2022

Jeffrey Scott Eastman, Gladstone, MO, for appellant.

Rachel Jones, Jefferson City, MO, for respondent.

Before Special Division: Gary D. Witt, Chief Judge, Presiding, Thomas N. Chapman, Judge, and Zel Fischer, Special Judge

Gary D. Witt, Judge

Weston Urbaniak ("Urbaniak") appeals the judgment of the Circuit Court of Jackson County, Missouri ("trial court") affirming the decision of the Director of Revenue to sanction Urbaniak's driving privilege pursuant to the provisions of section 302.574.¹ On appeal, Urbaniak claims the trial court's judgment is in error in that it is against the weight of the evidence because, viewed correctly, the evidence establishes that there was no probable cause for the officer to believe that Urbaniak was driving under the influence of alcohol. We affirm the judgment of the trial court.

Factual and Procedural Background²

On August 20, 2020, Urbaniak was stopped for speeding for driving 64 miles per hour in a 40–mile–per–hour zone by Deputy S. Stoff of the Jackson County, Missouri, Sherriff's Department ("Deputy Stoff"). During the stop, Urbaniak told the officer he believed that the speed limit was fifty–five miles per hour and he was in a hurry to get home. Deputy Stoff noted that Urbaniak's eyes were bloodshot and glassy, and he noticed a moderate odor of intoxicants and the odor of burnt marijuana. Urbaniak stated that he was coming from a friend's house where he had consumed "a couple of beers" with his last beer being "about forty–five minutes ago." Deputy Stoff patted down Urbaniak for safety and felt a large round object in Urbaniak's front pants pocket, which Urbaniak reported was marijuana. Urbaniak reported that he had last smoked marijuana "a while ago."

Deputy Stoff conducted the three Standardized Field Sobriety Tests ("SFST"). First, he performed the Horizontal Gaze Nystagmus test ("HGN") and observed a lack of smooth pursuit in both eyes and distinct and sustained nystagmus at maximum deviation. Urbaniak also swayed during the test, and Deputy Stoff noticed the odor of intoxicants was stronger while Urbaniak was standing in front of him than he previously noted. Deputy Stoff then conducted the walk–and–turn test, and observed that Urbaniak failed to touch heel–to–toe on his first two steps, lost balance while walking, and used his arms for balance. Next Deputy Stoff requested Urbaniak perform the one–leg–stand test. During the performance of this test Urbaniak swayed while balancing but no other clues of intoxication were observed. Urbaniak refused to submit to a preliminary breath test. Based on the totality of the circumstances, his observations of impaired driving, the smell of intoxicants emitting from within the driver's compartment and Urbaniak's own breath, Urbaniak's admission to having consumed intoxicants, and his observations of Urbaniak's impairment while performing the SFSTs, Deputy Stoff placed Urbaniak under arrest for driving while intoxicated.

Deputy Stoff advised Urbaniak of Missouri's Implied Consent law and requested that he submit to a chemical test of his breath.³ After several unsuccessful attempts to contact an attorney, Urbaniak refused to consent to a chemical test of his breath. Urbaniak received two tickets, one for speeding and one for driving while intoxicated, and was served with a notice of revocation of his license based upon his refusal to submit to a breath analysis test.

Urbaniak timely filed a petition to review the refusal sanction, and on April 22, 2021, a hearing was held in the Circuit Court. The Director offered its Certified File, which was received into evidence without objection, and rested. Urbaniak offered into evidence, without objection, the Impairment Clue Charts of the National Highway Traffic Safety Administration ("NHTSA") relating to driving and stopping and to personal contact between an officer and driver in a DWI stop. Urbaniak also offered evidence, without objection, that the NHTSA had found the HGN test, by itself if properly administered, to be seventy-seven percent accurate; the walk-and-turn test, by itself if properly administered, to be sixty-eight percent accurate; and the one-leg-stand test, by itself if properly administered, to be sixty-five percent accurate in determining that a subject will have a blood alcohol concentration of over .08. Urbaniak also offered a copy of the dash-camera and in-car video surrounding his arrest.

The trial court took the matter under advisement, and on April 26, 2021, issued a judgment affirming the Director's decision. This appeal follows.

Standard of Review

"[T]rial court judgments in driver's license suspension and revocation cases under section 302.535 are reviewed as any court–tried civil case." White v. Dir. of Revenue , 321 S.W.3d 298, 307 (Mo. banc 2010). "[T]he trial court's judgment will 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." Id. at 307–08. A trial court's judgment is against the weight of the evidence "only if the [trial] court could not have reasonably found, from the record at trial, the existence of a fact that is necessary to sustain the judgment." Ivie v. Smith , 439 S.W.3d 189, 206 (Mo. banc 2014). "To set aside a judgment as ‘against the weight of the evidence,’ this Court must have a firm belief that the judgment is wrong." White , 321 S.W.3d at 308.

A party raising an against–the–weight–of–the–evidence challenge must follow the four–step analytical sequence for raising such a challenge as set forth in Houston v. Crider, 317 S.W.3d 178, 187 (Mo. App. S.D. 2010) :

(1) identify a challenged factual proposition, the existence of which is necessary to sustain the judgment;

(2) identify all the favorable evidence in the record supporting the existence of that proposition;

(3) identify the evidence in the record contrary to the belief of that proposition, resolving all conflicts in testimony in accordance with the trial court's credibility determinations, whether explicit or implicit; and,

(4) demonstrate why the favorable evidence, along with the reasonable inferences drawn from that evidence, is so lacking in probative value, when considered in the context of the totality of the evidence, that it fails to induce belief in that proposition.

Meseberg v. Meseberg, 580 S.W.3d 59, 66 (Mo. App. W.D. 2019).

Analysis

Urbaniak's single point on appeal is that the trial court's judgment was against the weight of the evidence in that, when properly viewed, the evidence does not support a conclusion that Deputy Stoff had probable cause to believe that Urbaniak was driving while intoxicated at the time of his arrest.

Section 302.574.3 establishes Missouri's implied consent law, which provides that drivers, in exchange for their privilege to drive a vehicle on the roadways of the state, consent to a chemical test of their breath when an officer has reasonable grounds to believe that the driver is driving while intoxicated; it authorizes the Director to revoke a driver's license for one year for refusing to submit to a chemical test. State v. Reeter , 582 S.W.3d 913, 916 (Mo. App. W.D. 2019) ; section 302.574. If the driver refuses to submit to a chemical test and faces revocation, he may file a petition for review in the circuit court. Section 302.574.4. The only issues at the hearing will be: "(1) Whether the person was arrested or stopped; (2) Whether the officer had; (a) Reasonable grounds to believe that the person was driving a motor vehicle while in an intoxicated or drugged condition; ... and (3) Whether the person refused to submit to the test." Id. "Reasonable grounds [for purposes of section 302.574] is virtually synonymous with probable cause." White , 321 S.W.3d at 305 n.6. Urbaniak concedes that he was arrested and that he refused to submit to the chemical test. This appeal focuses solely on whether the officer had reasonable grounds to believe Urbaniak was intoxicated while driving a motor vehicle.

Deputy Stoff concluded that there were reasonable grounds to arrest Urbaniak for driving while intoxicated as set forth in his report:

Based on the totality of the circumstances, my observation of impaired driving, the smell of intoxicants emitting from within the driver's compartment and his own breath, Urbaniak's own admission to consuming intoxicants, and my observation of impairment during the field sobriety test, I placed Urbaniak in custody for driving while intoxicated.

Urbaniak takes issue with the above evidence in several respects. First, Urbaniak acknowledges that speeding is a valid basis for stopping a vehicle but argues that exceeding the speed limit by driving sixty–four miles per hour in a forty–mile–per–hour zone is not proper support for reasonable grounds of impairment because the NHTSA's vehicle in motion impairment clues do not include excessive speed.

Since the mid–1970s, the International Association of Chiefs of Police ("IACP") and the National Highway Traffic Safety Administration ("NHTSA"), in conjunction with additional law enforcement agencies, have conducted extensive research in detection of impaired drivers. State v. Browning, 458 S.W.3d 418, 424–425 (Mo. App. W.D. 2015) (Witt, J., concurring). That research has identified three phases to DWI detection. According to the NHTSA manual, Phase One is Vehicle In Motion, Phase Two is Personal Contact, and Phase Three is Pre–arrest Screening. DWI Detection & Standardized Field Sobriety Testing Manual, Sec. 4 p. 5 (NHTSA 2018 ed.)("NHTSA Manual").

Under Phase I, NHTSA sponsored research to identify the most common and reliable initial indicators of possible impairment during the observation of the operation and stop of the vehicle. Id. Speeding is not listed as one of the clues identified by NHTSA as a common and reliable...