Walker v. Director of Revenue
| Decision Date | 01 July 2004 |
| Docket Number | No. SC 85877.,SC 85877. |
| Citation | 137 S.W.3d 444 |
| Parties | Scott D. WALKER, Respondent, v. DIRECTOR OF REVENUE, Appellant. |
| Court | Missouri Supreme Court |
Jeremiah W. (Jay) Nixon, Atty. Gen., Evan J. Buchheim, Asst. Atty. Gen., Jefferson City, MO, for Appellant.
Branson L. Wood, III, Hannibal, MO, for Respondent.
1
Scott D. Walker was arrested for driving while intoxicated. A breath test indicated a blood alcohol concentration (BAC) of .113 percent. Acting pursuant to section 302.505, RSMo Supp.2001,2 the director suspended Walker's license because his BAC exceeded .08 percent. Walker sued to obtain judicial review of the director's decision. After a hearing, the circuit court reinstated Walker's driving privileges. The director appeals, correctly contending that there is insufficient evidence to support the trial court's decision. The judgment is reversed.
This Court will affirm the trial court's judgment unless there is no substantial evidence to support it, unless the decision is contrary to the weight of the evidence, or unless the trial court erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). This Court defers to the trial court's determination of credibility. Verdoorn v. Director of Revenue, 119 S.W.3d 543, 545 (Mo. banc 2003).
The director argues that the trial court erred in setting aside the suspension of Walker's license because: (1) the arresting officer had probable cause to arrest Walker for driving while intoxicated; (2) Walker's breath test result was .113 percent; and (3) Walker failed to rebut the director's prima facie case by proving by a preponderance of the evidence that either there was not probable cause for arrest or that his BAC was below .08 percent.
This Court recently reviewed the statutory scheme for suspended or revoked driver's license cases involving those arrested upon probable cause to believe they were driving while intoxicated.
Applying this statutory scheme, the director must initially present evidence to establish probable cause for the arrest and the driver's blood alcohol level of [.08] % or greater. This evidence creates a presumption that the driver was intoxicated. The driver is then entitled to rebut the director's prima facie case with evidence that his blood alcohol content did not exceed the legal limit. Ultimately, the circuit court must determine whether the director has met the burden of proving by a preponderance of the evidence that the driver drove while legally intoxicated.
Verdoorn v. Director of Revenue, 119 S.W.3d 543, 545 (Mo. banc 2003) (citations omitted.)
The director established probable cause for Walker's arrest. Probable cause exists when the facts and circumstances warrant a person of reasonable caution to believe that an offense has been or is being committed, based on the circumstances as they appear to a prudent, cautious and trained police officer. Kleffner v. Director of Revenue, 956 S.W.2d 446, 448 (Mo.App. 1997); Johnson v. Director of Revenue, State of Mo., 920 S.W.2d 129, 132 (Mo.App. 1996). Additionally, probable cause that supports the suspension of a driver's license can be developed after the driver has been otherwise properly stopped. Johnson at 132.
In this case, the officer testified that she stopped Walker's vehicle after seeing him swerving, crossing the centerline, and driving on the fog line. She then noticed that Walker's movements were slow, that he smelled of alcohol, and that his eyes were watery, bloodshot, and glassy. Walker admitted to the officer that he had consumed two beers before leaving a bar about five miles from where he was stopped. He also failed the field sobriety test. This evidence was sufficient to establish the necessary probable cause. Walker did not produce evidence sufficient to rebut the prima facie showing that there was such probable cause.
The director also proved that Walker's BAC was at least .08 percent at the time of his arrest. The director presented evidence that properly established the foundation for admitting breathalyzer test results and that Walker's breath-test measured his BAC as .113 percent.
The foregoing established the director's prima facie case. Walker sought to rebut it by four theories: (1) failure to change the mouthpiece, (2) removal of his dentures, (3) his asthmatic condition, and (4) his BAC was lower when he was actually driving.
As to the mouthpiece issue, Walker offered evidence through an expert that blowing into a breath analyzer multiple times without changing the mouthpiece could have caused an elevated BAC reading. The expert also contended that the waiting period between tests should have been greater to maximize the accuracy of the test results. This expert, however, did no testing in general or on Walker to show the amount of impact repeated blowing or use of the same mouthpiece may have had on Walker's BAC reading.
The director offered contrary evidence. The director's expert testified testing results for the machine in this case indicated that using the same mouthpiece caused BAC to register .003 percent less than its actual amount.
Walker's inconclusive testimony is not sufficient to rebut the presumption of intoxication established by the director's prima facie case. Verdoorn at 547. Additionally, the state department of health has no rules, regulations or guidelines established pursuant to section 577.020.3 that require an officer to change the mouthpiece between tests. Meyer v. Director of Revenue, 34 S.W.3d 230, 234-35 (Mo.App. 2000).
As to his theory concerning the dentures, Walker's expert testified that removing Walker's dentures on his third test could have exposed alcohol in his denture adhesive that may have affected his BAC reading. The expert knew of no studies that supported this theory and offered no definitive opinion as to the amount of impact that removal of dentures could have had.
The director's witness testified that the testing...
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