Wei v. Dir. of Revenue

• Decision Date: 24 February 2011
• Docket Number: No. SD 30465.,SD 30465.
• Parties: Zhouqun Iris WEI, Appellant,v.DIRECTOR OF REVENUE, Respondent.
• Court: Missouri Court of Appeals

335 S.W.3d 558

Zhouqun Iris WEI, Appellant,

v.DIRECTOR OF REVENUE, Respondent.

No. SD 30465.

Missouri Court of Appeals, Southern District, Division One.

Feb. 24, 2011.Motion for Rehearing or Transfer

Denied March 21, 2011.

Application for Transfer Denied

April 26, 2011.

Jianbin Wei, Springfield, for Appellant.Chris Koster, Atty. Gen. and Jonathan H. Hale, Sp. Asst. Atty. Gen., Jefferson City, for Respondent.ROBERT S. BARNEY, Presiding Judge.

This appeal involves the judicial review of the revocation of Zhouqun Iris Wei's (“Driver”) driving privileges by the Director of Revenue (“the Director”) pursuant to section 577.041 ¹ for refusing to submit to a breath analysis test to determine whether she was legally intoxicated. Subsequent to Driver's filing of her petition for review and after a hearing, the trial court sustained the Director's revocation of Driver's driving privileges. Driver now brings five points of trial court error. The judgment of the trial court is affirmed.

The Director submitted her entire case on the certified record of the Missouri Department of Revenue, which contained a copy of Trooper Adam Dillon's (“Trooper Dillon”) alcohol influence report (“AIR”) with attached “Narrative;” a copy of Driver's “Missouri Driver Record;” and a copy of the “Refusal to Submit to Alcohol ... Chemical Test ...” form. See § 302.312, RSMo 2000. At Driver's request the trial court entered into evidence a copy of the videotape from Trooper Dillon's dashboard camera and a copy of Trooper Dillon's deposition taken by Driver's counsel on October 29, 2009. Driver did not testify.

On January 27, 2010, the trial court entered its “Judgment” in which it found Driver “was arrested, that the arresting officer had reasonable grounds to believe [Driver] was driving a motor vehicle while in an intoxicated condition and [Driver] refused to submit to a chemical test,” and sustained the Director's revocation of Driver's driving privileges. Subsequent to the disposition of Driver's post-trial motion, this appeal followed.

On appeal, the judgment of the trial court will be affirmed unless there is no substantial evidence to support it, the judgment is against the weight of the evidence, or the trial court erroneously declared or applied the law. White v. Dir. of Revenue, 321 S.W.3d 298, 307 (Mo. banc 2010). ² “In reviewing a particular issue that is contested, the nature of the appellate court's review is directed by whether the matter contested is a question of fact or law.” ³ Id. “When the facts relevant to an issue are contested, the reviewing court defers to the trial court's assessment of the evidence.” Id. at 308; see Bd. of Educ. of City of St. Louis v. Mo. State Bd. of Educ., 271 S.W.3d 1, 7 (Mo. banc 2008) (holding that when reviewing fact questions this Court gives deference to the finder of fact).

The record reveals that in the early morning hours of June 7, 2009, Trooper Dillon observed Driver's vehicle “traveling very close to the fog line.” Trooper Dillon reversed his direction to follow Driver's vehicle when he observed her vehicle “weaving within its lane of travel” and observed that “the right rear tail light cover was broken and a white light was emitting to the rear ...” ⁴ Trooper Dillon initiated a traffic stop of the vehicle and made contact with Driver at which time he observed “her eyes were bloodshot, glassy, and staring....” He also “detected an odor of intoxicants emanating from the interior of the ...” vehicle as he was speaking with Driver. Trooper Dillon asked Driver's passenger to remain in the vehicle and had Driver accompany him to his patrol car. Once inside the patrol car, Trooper Dillon continued to smell the “strong” “odor of intoxicants about [Driver's] breath as she spoke,” and she admitted to having a single, alcoholic drink earlier in the evening. Driver agreed to submit to a portable breath test and “the result indicated a blood alcohol content greater than .080 percent,” specifically “above ... [a] nine, and below a one....” Trooper Dillon then initiated a series of field sobriety tests and asked Driver to perform them on the concrete to the rear of his vehicle. Trooper Dillon reported the following results for those tests in the narrative portion of his AIR report:

[w]hile performing the Horizontal Gaze Nystagmus test, [Driver] swayed in a side to side manner, did not stand with her heels and toes touching, did not always follow my finger, did not always keep her head stationary, and all six points and vertical nystagmus were observed. During the Walk and Turn test, [Driver] did not maintain the required starting position, began the test before being instructed to do so, did not touch heel to toe on any forward or return steps, made an improper turn to her right, hesitated and stepped off the line on forward step eight, did not look at her feet, and used her arms for balance. While performing the One Leg Stand test, [Driver] did not look at her foot, used her arms for balance, did not keep both legs straight, and put her foot down after 4 and 27 seconds had lapsed. [Driver] stated the entire alphabet in a choppy⁵ manner ....⁶

Following her performance on the field sobriety tests and the portable breath test, Trooper Dillon placed Driver under arrest and transported her to the Camden County Sheriff's Department.⁷ Upon arrival, Trooper Dillon “read [Driver] the Missouri Implied Consent” ⁸ form and she consented to a chemical test of her breath to determine its alcohol content. Trooper Dillon wrote in the narrative portion of the AIR that the following then occurred:

[b]efore both tests, I instructed [Driver] to provide a long and steady breath sample until I instructed her to stop. [Driver] stated she understood and during the first attempt, [she] provided two or three second bursts of air and would stop. As [Driver] provided a breath sample, I observed the instrument's digital display climb from .000 to .093 percent. [Driver's] improper efforts continued until the instrument deemed the test to be invalid. I explained to [Driver] I would allow her to perform another test but, if her improper actions continued I would consider her efforts to be a refusal.

Before starting the second test, [Driver] requested to watch the digital display. I explained to [Driver] that she would inevitably stop providing a breath sample when she saw her alcohol level was above .080 percent. [Driver] ensured me she would not do that and I allowed her to watch the display. As [Driver] provided her breath, the digital display indicated an alcohol percent of .081 percent and [Driver] stopped providing a sample. The remainder of the test mimicked her actions of the first. [Driver's] improper efforts again continued until the instrument deemed the test to be invalid. Due to [Driver's] continuous improper efforts, the breath test was deemed to be a refusal.

In her first point relied on, Driver asserts the trial court erred in finding there were reasonable grounds to believe she had been operating her motor vehicle in an intoxicated condition because such a finding “was not supported by substantial evidence....” She asserts such a finding was erroneous because

the [AIR] (the Director's sole piece of evidence) was shown by the video of the traffic stop and [Trooper Dillon's] deposition to contain numerous glaringly false and untrue, inconsistent, contradictory, implausible and mistaken statements on this essential element of a chemical refusal case, and said false, untrue, inconsistent, contradictory, implausible and mistaken statements tainted the rest of the Director's evidence and deprived the same of the substantiality required to support a judgment.

In her argument under this first point relied on, Driver cites to various purported “inconsistencies” and “inaccuracies” among Trooper Dillon's AIR, his deposition testimony and the videotape. For example, she takes issue with the fact that the AIR and the deposition testimony set out that Driver was handcuffed before being transported to the sheriff's department but the videotape shows she was not handcuffed. We find this purported inconsistency or mistake to be non-material to the issues set out in section 577.041 which the trial court was charged with determining. See Phelps v. Dir. of Revenue, 47 S.W.3d 395, 402 (Mo.App.2001), overruled on other grounds by Verdoorn v. Dir. of Revenue, 119 S.W.3d 543, 547 (Mo. banc 2003). Driver also asserts that the broken taillight and the weaving in her lane are not clear from the videotape yet were recited in both the AIR and Trooper Dillon's deposition testimony as reasonable grounds for her traffic stop. Another “contradictory, implausible and mistaken statement[ ] ...” argued by Driver includes the fact that Trooper Dillon testified in his deposition that he first encountered Driver “a mile and a half ... north of [Missouri] 7,” but that he was able to reverse his vehicle's direction and catch up to Driver such that he pulled her over “one mile north of Missouri 7”—a maneuver Driver maintains would have necessitated “[h]is average speed [to] have been 112 mph....” This Court, however, sees no probative evidence supporting the contention that any statements made by Trooper Dillon were intentionally misleading or “glaringly false ...” as urged by Driver. There are almost always going to be factual discrepancies in any matter such as the present one where the incident is rather poorly videotaped, the episode is then reported in writing by the arresting officer a short time after the arrest, and then the officer is deposed a significant time later. As stated by the Director in its brief “the great majority of the ‘inconsistencies' that [Driver] points to are simply negative inferences that the trial court chose not to make.” As clearly pointed out in the Supreme Court of Missouri's recent decision in White, 321 S.W.3d at 308, this Court defers to the trial court's view of the evidence and will not...