Webb v. Director of Revenue, State of Mo.

• Citation: 896 S.W.2d 517
• Decision Date: 18 April 1995
• Docket Number: No. WD,WD
• Parties: Douglas Jerome WEBB, Respondent, v. DIRECTOR OF REVENUE, STATE OF MISSOURI, Appellant. 49914.
• Court: Missouri Court of Appeals

Page 517

896 S.W.2d 517

Douglas Jerome WEBB, Respondent, v. DIRECTOR OF REVENUE, STATE OF MISSOURI, Appellant.

No. WD 49914.

Missouri Court of Appeals,

Western District.

April 18, 1995.

Jeremiah W. (Jay) Nixon, Atty. Gen., James A. Chenault, III, Sp. Asst. Atty. Gen., Mo. Dept. of Revenue, Jefferson City, for appellant.

J. Michael Joy, Lee's Summit, for respondent.

Before FENNER, C.J., P.J., and BERREY and ULRICH, JJ.

FENNER, Chief Judge.

The Director of Revenue appeals the circuit court's order reinstating respondent's driving privileges after they were suspended under the administrative suspension and revocation provisions of sections 302.500-302.541, RSMo 1994. ¹ We reverse and remand.

On November 5, 1993, Sergeant DiPalermo of the Lee's Summit Police Department found respondent's car, engine running, on the shoulder of Chipman Road. Sergeant DiPalermo noticed a tire jack behind the damaged left front tire of the car, a spare tire on the ground, three lug nuts off of the left front wheel, and the car's trunk open. As he approached the car, Sergeant DiPalermo saw the respondent sleeping in the front seat. After waking the respondent, Sergeant DiPalermo smelled a strong odor of alcohol emanating from the respondent. Respondent told Sergeant DiPalermo that he had been drinking at Hero's in Lee's Summit, and was trying to get home. Respondent also told Sergeant DiPalermo that he had run his car off the road, hit the curb, and bent the wheel rim, causing a flat tire, which he had attempted to change.

Sergeant DiPalermo contacted Officer Alexander, who administered a field sobriety test on the respondent. Officer Alexander then arrested the respondent and took him to the police station for a breathalyzer test. The breathalyzer test revealed that respondent's blood alcohol content was .16%.

The Director of Revenue suspended respondent's driving privileges pursuant to sections 302.500-302.541. On July 22, 1994, after a trial de novo, the circuit court found in favor of respondent and reinstated his driving privileges. The Director appeals.

The judgment of the trial court 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 misapplies the law. Chinnery v. Director of Revenue, 885 S.W.2d 50, 51 (Mo.App.1994); Stoltz v. Director of Revenue, 816 S.W.2d 711, 713 (Mo.App.1991). The Director has the burden to establish, by a preponderance of the evidence, that the police had probable cause to make the arrest for driving while intoxicated, and that the respondent had a blood alcohol content of at least .10% at the time of the arrest. Section 302.505; Chinnery, 885 S.W.2d at 51. In this case, it was undisputed that respondent's blood alcohol content exceeded .10%. The only issue on appeal is whether the evidence established that the police had probable cause to arrest respondent for driving while intoxicated and whether the trial court erred in finding otherwise. In this regard, the trial court held that respondent's admission to the arresting officer that he had been driving his vehicle was not sufficient of itself to establish probable cause.

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