White v. Dir. Of Revenue

Decision Date03 August 2010
Docket NumberNo. SC 90400.,SC 90400.
Citation321 S.W.3d 298
PartiesAdam Ford WHITE, Respondent, v. DIRECTOR OF REVENUE, Appellant.
CourtMissouri Supreme Court




Matthew L. Dameron, Atty. General's Office, Jefferson City, for appellant.

James E. Switzer, James E, Switzer LLC, Clinton, for respondent.


Adam Ford White was arrested for driving while intoxicated in violation of section 577.010, RSMo 2000. Thereafter, the director of revenue suspended his license, under section 302.505, 1 for being arrested on probable cause to believe he was driving with a blood alcohol content of .08 percent or greater. Mr. White filed a petition with the trial court to review the suspension of his license. After a trial de novo, the trial court reinstated his driving privilege. The director appeals. The director claims the trial court's judgment is against the weight of the evidence and misapplies the law regarding probable cause. In section 302.535, the statute authorizing the trial de novo, the legislature placed the burden of proof on the director and provided that Missouri rules of civil procedure apply, which include the rule that the evidence is viewed in the light most favorable to the trial court's judgment. Additionally, as in any court-tried civil case, the trial court can disbelieve all, some, or none of the director's evidence on the contested issue of probable cause. Applying this law, the trial court's judgment was not against the weight of the evidence and the trial court did not misapply the law. The trial court's judgment is affirmed.

Factual and Procedural Background

On September 20, 2007, a Missouri Highway Patrol sergeant stopped Mr. White after observing that he failed to signal when turning. During the stop, the sergeant administered a series of field sobriety tests and then arrested Mr. White for driving while intoxicated. Following Mr. White's arrest, the sergeant transported him to the Henry County jail and administered a breath test, which showed that his blood alcohol content was above the legal limit. 2 Thereafter, the director administratively suspended Mr. White's driver's license under section 302.505. Mr. White filed a petition for judicial review of the administrative suspension in the Henry County circuit court, citing section 302.311, RSMo 2000. Although Mr. White stated in his petition that he was seeking judicial review under section 302.311, RSMo 2000, the trial court held a trial de novo, as authorized by section 302.535. 3

At the trial de novo, Mr. White stipulated that the only contested issue was whether the officer had probable cause to arrest him for driving with excessive blood alcohol content. Specifically, Mr. White stipulated to the foundation for and admissibility of the blood alcohol test taken at the Henry County jail. The director then called as a witness the sergeant who arrested Mr. White. The sergeant testified that he noticed Mr. White's vehicle when it passed his patrol vehicle. The officer followed Mr. White's vehicle until he observed him turn into a parking lot without using his turn signal. The sergeant pulled into the lot and activated his emergency equipment. After stopping the vehicle, the officer discovered that Mr. White's turn signal was not working. However, while the vehicle was stopped, the sergeant noticed a strong odor of alcohol coming from Mr. White and empty beer cans on the floor of his vehicle. He questioned Mr. White about consuming alcohol, and, although Mr. White initially denied drinking, he did admit that he had consumed alcohol earlier in the day.

The sergeant testified that he then administered field sobriety tests to Mr. White. Mr. White tested positive for alcohol on the portable breathalyzer test. The sergeant stated that Mr. White also exhibited five of six clues indicating intoxication during the horizontal gaze nystagmus test and swayed when he took the test. Additionally, he failed the walk-and-turn test because he pivoted on his left foot rather than taking tiny steps. The sergeant again testified that he observed that Mr. White swayed and added that his eyes were bloodshot. He testified that, based on his experience, training, and observations of Mr. White's performance of the field sobriety tests, he believed Mr. White was intoxicated, so he arrested Mr. White.

On cross-examination, the sergeant testified that there was nothing abnormal about Mr. White's driving other than the fact that Mr. White passed him while the sergeant was driving the speed limit and that he failed to signal a turn. Specifically, the sergeant did not observe Mr. White weaving in the traffic lanes or other erratic driving. When Mr. White exited his vehicle, he did not stumble or touch his vehicle for stability. Although there were empty beer cans on the floor of Mr. White's vehicle, the sergeant did not detect any odor of alcohol in the vehicle. The sergeant described the odor of alcohol emanating from Mr. White as strong, when he was sitting in the patrol car. When questioned further, the sergeant acknowledged that he had marked in his written alcohol influence report that there was only a moderate odor of alcohol emanating from Mr. White when he was in the patrol car.

The sergeant then was cross-examined about his methodology in performing the horizontal gaze nystagmus test. When asked whether Mr. White was facing the roadway when the test was administered, the sergeant testified that he did not remember. He reluctantly acknowledged that the National Highway Traffic Safety Administration suggests that a person not face the roadway while being tested so the person's eyes would not be stimulated by traffic, but he stated he did not believe it was a requirement. He also testified that the only swaying he observed was Mr. White moving in a one-inch circle-moving half an inch from the center in each direction-during the horizontal gaze nystagmus test. When questioned about his instructions for the one-leg-stand test, a detail of his instructions to Mr. White differed from his direct testimony.

At the end of the sergeant's testimony, his alcohol influence report about Mr. White was admitted into evidence. While in his direct testimony, he testified that his attention was drawn to Mr. White because he was speeding, in the narrative of the alcohol influence report, the sergeant stated that Mr. White's vehicle “slowly passed” his vehicle. The director rested, and Mr. White did not present any evidence.

In its judgment, which did not include findings of fact or conclusions of law, the trial court found in favor of Mr. White and ordered his license reinstated. The director appeals.

On appeal, the director argues the trial court's judgment was against the weight of the evidence and misapplied the law regarding probable cause. The director asserts that, based on the facts and circumstances in this case, a prudent, cautious, and trained officer would have probable cause to believe that Mr. White was driving while intoxicated. This Court granted transfer after memorandum opinion by the court of appeals. Mo. Const. art. V, sec. 10.

Section 302.535 Places Burden of Proof on State and Requires Application of Rules of Civil Procedure

The director claims that there was substantial and uncontroverted evidence that supported the arresting officer's probable cause determination and, therefore, that trial court's judgment is against the weight of the evidence. The director argues that because the trial court made no findings of fact on the officer's credibility and the director's evidence was not controverted, this Court need not defer to the trial court's factual determinations. In support of this argument, the director cites prior decisions of this Court and the court of appeals regarding the parties' burden of producing evidence and the discretion given to the trial court's determination of the credibility of the director's evidence in section 302.535 cases.

Section 302.535 governs judicial review of an administrative suspension or revocation of a person's license, pursuant to section 302.505, 4 when the person is arrested on probable cause to believe that the person was driving with a blood alcohol content of .08 percent or more. Section 302.535.1 permits a person aggrieved by the director's decision to request a trial de novo in the circuit court. In such trials de novo, the legislature expressly placed the burden of proof on the state and expressly provided that the trial be conducted according to Missouri rules of civil procedure. Section 302.535.1 reads:

Any person aggrieved by a decision of the department may file a petition for trial de novo by the circuit court. The burden of proof shall be on the state to adduce the evidence. Such trial shall be conducted pursuant to the Missouri rules of civil procedure and not as an appeal of an administrative decision pursuant to chapter 536, RSMo. The petition shall be filed in the circuit court of the county where the arrest occurred. The case shall be decided by the judge sitting without a jury.

(emphasis added). The director's burden of proof 5 has two components-the burden of production and the burden of persuasion. Kinzenbaw v. Dir. of Revenue, 62 S.W.3d 49, 53 (Mo. banc 2001). The burden of production is “a party's duty to introduce enough evidence on an issue to have the issue decided by the fact-finder, rather than decided against the party in a peremptory ruling such as summary judgment or a directed verdict.” Black's Law Dictionary 223 (9th ed.2009). The burden of persuasion is defined as [a] party's duty to convince the fact-finder to view the facts in a way that favors that party.” Id. By also placing the burden of “adduc [ing] evidence on the director, in addition to its assignment of the burden of proof to the director, the legislature emphasized its intention that it is the director who must bear the burden of producing...

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