Zummo v. Director of Revenue
| Decision Date | 31 January 2007 |
| Docket Number | No. 27442.,27442. |
| Parties | Richard A. ZUMMO, Plaintiff-Respondent, v. DIRECTOR OF REVENUE, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Jeremiah W. (Jay) Nixon, Atty. Gen., Cheryl Caponegro Nield, Asst. Atty. Gen., Jefferson City, MO, for Appellant.
Richard Don Crites, Springfield, MO, for Respondent.
The Director of Revenue (Director) revoked the driving privileges of Richard A. Zummo (Zummo) for one year after he refused to submit to a chemical test of his breath to determine his blood alcohol content. Zummo filed a petition for review. At trial, the only evidence presented by either party was a certified copy of Zummo's driving records from the Department of Revenue. The trial judge decided "the arresting officer did not have reasonable cause to believe that [Zummo] was operating a motor vehicle in an intoxicated or drugged condition[.]" Therefore, the court entered a judgment setting aside the administrative revocation and reinstating Zummo's driving privileges. The Director contends the judgment is not supported by the evidence. We agree. The judgment is reversed, and the cause is remanded with directions to reinstate the Director's one-year revocation of Zummo's driving privileges.
A person who operates a motor vehicle upon a public highway of this state is deemed to have consented to have his or her breath, blood, saliva or urine chemically tested to determine the individual's blood alcohol content after being arrested "for any offense arising out of acts which the arresting officer had reasonable grounds to believe were committed while the person was driving a motor vehicle while in an intoxicated . . . condition[.]" § 577.020.1(1).1 If an arrestee refuses to take the chemical test, the officer is required to forward a sworn report to the Director. § 577.041.2. Upon receipt of the officer's report, the Director is required to revoke the individual's driving privileges for one year. § 577.041.3.
By filing a petition for review, the individual can obtain a post-revocation hearing in circuit court. § 577.041.4. There are only three issues to be decided at the hearing: "(1) whether or not the person was arrested or stopped; (2) whether the officer had reasonable grounds to believe that the person was driving a motor vehicle while in an intoxicated or drugged condition; and (3) whether or not the person refused to submit to the test." Hinnah v. Director of Revenue, 77 S.W.3d 616, 620 (Mo. banc 2002); § 577.041.4. "If the court determines any issue not to be in the affirmative, the court shall order the director to reinstate the license or permit to drive." § 577.041.5. The burden of proof rests on the Director. Rain v. Director of Revenue, 46 S.W.3d 584, 587 (Mo.App. 2001). If the Director makes a prima facie case for revocation, however, the burden of producing evidence to rebut the Director's case shifts to the driver. Hamor v. Director of Revenue, 153 S.W.3d 869, 872 (Mo.App.2004); see Verdoorn v. Director of Revenue, 119 S.W.3d 543, 546 (Mo. banc 2003).
We must affirm the trial court's judgment unless: (1) there is no substantial evidence to support it; (2) it is against the weight of the evidence; (3) the trial court erroneously declared the law; or (4) the trial court erroneously applied the law. Hinnah v. Director of Revenue, 77 S.W.3d 616, 620 (Mo. banc 2002); Laney v. Director of Revenue, 144 S.W.3d 350, 352 (Mo.App.2004). If the evidence is uncontroverted and the real issue is the legal effect of the evidence, there is no need to defer to the trial court's judgment. See Verdoorn v. Director of Revenue, 119 S.W.3d 543, 545 (Mo. banc 2003). "Appellate courts do not give any deference to a trial judge's determination regarding the credibility of witnesses in cases submitted solely upon a written record." Callanan v. Director of Revenue, 163 S.W.3d 509, 513 (Mo.App.2005); Jarrell v. Director of Revenue, 41 S.W.3d 42, 46 (Mo.App.2001). Furthermore, in license revocation cases, "neither a trial court nor an appellate court may disregard uncontroverted evidence supporting the fact that all elements of the Director's case were met." Howdeshell v. Director of Revenue, 184 S.W.3d 193, 197 (Mo.App.2006); Curnutt v. Director of Revenue, 142 S.W.3d 225, 227 (Mo.App.2004).
In May 2005, Zummo was notified by the Department of Revenue (DOR) that his driving privileges would be revoked for one year because he refused to submit to a chemical test of his blood alcohol content. He filed a petition for review pursuant to § 577.041.4.
In December 2005, a post-revocation hearing was held. The Director's case-in-chief consisted of 11 pages of certified DOR records concerning Zummo, which the trial court admitted in evidence as Exhibit A. The arresting officer's alcohol influence report (AIR) and incident report were included in this exhibit. The uncontroverted facts established by these two documents, which neither the trial court nor we may disregard, are summarized below.
On May 26, 2005 Officer Steve Ramey (Ramey) was driving northbound in his patrol car on Glenstone Avenue in Springfield, Missouri. At 10:46 p.m., he observed a 1989 Ford F-150 pickup quickly turn onto a side street without signaling or braking. The pickup was being driven by Zummo. Ramey followed Zummo, who quickly turned onto another street without signaling. At that point, Ramey initiated a traffic stop.
As Ramey approached the truck, he could smell "a strong odor of intoxicants" coming from inside the vehicle. When Zummo was asked for his license, he fumbled for his wallet for 20 seconds before finally retrieving it. During this time, Ramey noted that Zummo was avoiding eye contact "as if trying to hide his breath that was already strong." When Zummo did look at Ramey, the officer noted that Zummo's eyes were "staring and glassy." Ramey also noticed that Zummo's movements were "very lethargic and his speech was very slurred." Zummo denied that he had been drinking. When Ramey asked Zummo to exit his vehicle, he said, "I'm sorry, I decline your offer." The officer repeated this request two more times and received the same response each time. Finally, Zummo asked, "am I a threat to you[?]" Ramey responded that Zummo was not a threat, but he still needed to exit his vehicle.
When Zummo got out of his pickup, he put his hands in the air and began walking backwards toward Ramey's patrol car. Although Zummo was walking very slowly, he was having trouble balancing. Ramey told Zummo that he could lower his hands and asked him to walk to the side of the patrol car. At that point, Zummo stopped walking and again said, "I decline your offer." Zummo also refused to perform any field sobriety tests.
At 10:50 p.m., Ramey arrested Zummo for driving while intoxicated. He was transported to the Greene County jail. Once there, he was advised of the requirements of Missouri's implied consent law and asked to submit to a chemical test of his breath to determine his blood alcohol content. He refused to comply. Ramey then issued Zummo a citation for driving while intoxicated, another citation for failing to signal and a notice that his driving privileges were revoked.
There was one discrepancy in the documents contained in Exhibit A. The AIR specifies the location of the arrest at Kentwood Avenue and Meadowmere Street in Springfield, Missouri. The incident report contains references to the location of the arrest in three different parts of the report: the administrative information section, the arresting officer's narrative summary and the arrest information section. In the administrative information section, the location of the stop is listed as "S Kentwood AV/E Meadowmere St." The officer's narrative states:
On 5-26-05 at 2246 hours, I was northbound on Glenstone approaching Meadowmere when I noticed a vehicle in the left hand turn lane without a turn signal on or break [sic] lights. The vehicle was facing north and quickly turned west onto Catalpa without signaling. The vehicle went to the intersection of Catalpa and Kentwood and turned back to the south, again, the driver did not use the turn signal. I activated my lights and sirens and pulled the vehicle over on Meadowmere and Kentwood.2
The arrest information section of the incident report, however, lists the arrest location as "N Glenstone AV/E Kearney St."
After Exhibit A was admitted in evidence, Zummo did not testify or offer any other evidence on his behalf. He did not dispute the fact that he was arrested or that he refused the test. Instead, his argument was that Ramey lacked reasonable grounds to believe Zummo was driving while intoxicated because: (1) the internal inconsistency in the incident report concerning the location of the arrest created a credibility issue that permitted the trial court to disregard all of the other facts contained in both the incident report and the AIR; and (2) the four-minute time period between the stop and the arrest was too short to determine intoxication.
At the conclusion of the hearing, the court ordered the Director to reinstate Zummo's driving privileges because "the arresting officer did not have reasonable cause to believe that [Zummo] was operating a motor vehicle in an intoxicated or drugged condition." This appeal followed.
The Director contends that the trial court's judgment is not supported by the evidence because Officer Ramey had reasonable grounds to believe Zummo had been driving while intoxicated. She argues that the uncontroverted documentary evidence presented to the trial court was sufficient to establish a prima facie case, which Zummo failed to rebut. We agree.
To establish a prima facie case, the Director had to prove the following three elements by a preponderance of the evidence: (1) whether Zummo was...
To continue reading
Request your trial
- Vanzandt v. State
-
Bess v. Dir. of Revenue, SD 30805.
...the court shall order the [D]irector to reinstate the license ....” § 577.041.5, RSMo Cum.Supp.2009; see Zummo v. Dir. of Revenue, 212 S.W.3d 236, 241 (Mo.App.2007). In reviewing cases involving the revocation of driving privileges, all three districts of the Missouri Court of Appeals have ......
-
Rugg v. Director of Revenue
... ... It merely commented that "[i]n rare instances, a trial court can be required to decide a legitimate factual dispute that arises because the documentary evidence presented by the Director is internally inconsistent," citing Richardson and Reece. The final case, Zummo v. Director of Revenue, 212 S.W.3d 236, 242-43 (Mo.App.2007), also identified Reece and Richardson as examples of rare cases in which an internal inconsistency in a report created a legitimate credibility dispute with respect to a material aspect of the director's case. However, it held that an ... ...
-
Wei v. Dir. of Revenue
...any issue not to be in the affirmative, the court shall order the [D]irector to reinstate the license ....” § 577.041.5; see Zummo, 212 S.W.3d at 241. In examining whether reasonable grounds existed for Trooper Dillon to believe Driver was operating her vehicle in an intoxicated condition, ......