Opinion
No. WD 66360.
Filed March 6, 2007.
Appeal from the Circuit Court of Callaway County, Missouri, The Honorable Joe D. Holt, Judge.
Before: Smart, P.J., and Smith and Hardwick, JJ.
The Director of Revenue (Director) appeals from the judgment of the Circuit Court of Callaway County, entered pursuant to § 577.041.5, setting aside her revocation, pursuant to § 577.041.3, of the driver's license of the respondent, Darrell J. Fick, for his refusal to submit to a blood test, as authorized by § 577.020, for the purpose of determining the alcohol content of his blood.
All statutory references are to RSMo, 2000, unless otherwise indicated.
In her sole point on appeal, the Director claims that the trial court erred in reinstating the respondent's driver's license, pursuant to § 577.041.5, because she presented uncontroverted evidence establishing a prima facie case for revocation, in accordance with § 577.041.3, which was not rebutted by the respondent.
We affirm.
Facts
At approximately 6:40 p.m., on March 20, 2005, Sergeant Jerry Arnold of the Missouri State Highway Patrol responded to a single-vehicle crash on Route K in Callaway County. When he arrived at the scene, he observed that a pickup truck was overturned in a ditch. He deduced that the driver of the pickup truck, the respondent, had failed to negotiate a curve, had driven off the right side of the road into the ditch, and when he tried to drive out of the ditch, he struck the culvert, which caused his truck to overturn.
An ambulance was already at the scene when Sergeant Arnold arrived. He observed medical personnel place the respondent on a stretcher and put him into the ambulance. Sergeant Arnold went to the ambulance to talk to the respondent and observed that he was wearing a neck collar and had an oxygen mask around his mouth. Sergeant Arnold smelled a moderate odor of alcohol coming from the respondent, who admitted, when asked, to having drunk a "few beers."
Sergeant Arnold performed a partial horizontal gaze nystagmus test on the respondent's left eye. He observed a lack of smooth pursuit and nystagmus at maximum deviation in the left eye. Sergeant Arnold was unable to perform the test on the right eye because of the respondent's medical treatment. No other field sobriety tests were performed. Sergeant Arnold surveyed the scene and found an unopened beer can and an empty beer carton near the respondent's truck.
Sergeant Arnold placed the appellant under arrest for driving while intoxicated. He did not physically restrain or handcuff him because the respondent was transported to the hospital for emergency care. Having arrested him, Sergeant Arnold read him the implied consent advisory and asked him to submit to a blood test, which the respondent refused. Sergeant Arnold did not provide the respondent with written notice advising him that his driving privileges were being revoked for one year. Instead, he mailed it to the Department of Revenue with instructions to mail it to the respondent. The respondent was taken to University Hospital in Columbia, Missouri, where he spent several days recovering from the accident.
Pursuant to § 577.041.3, the Director revoked the respondent's driver's license for his refusal to submit to the blood test requested by Sergeant Arnold. Pursuant to § 577.041.4, the respondent appealed his revocation to the Circuit Court of Callaway County. The appeal was heard by the Honorable Joe D. Holt on October 17, 2005. At the hearing, the only witness to testify on behalf of the Director was Sergeant Arnold. The respondent also testified. He testified, inter alia, that he had no recollection of the accident or any of the events afterward.
On November 18, 2005, the trial court entered judgment for the respondent, ordering the Director to reinstate his driver's license.
This appeal follows.
I.
In her sole point on appeal, the Director claims that the trial court erred in reinstating the respondent's driver's license, pursuant to § 577.041.5, because she presented uncontroverted evidence establishing a prima facie case for revocation, in accordance with § 577.041.3, which was not rebutted by the respondent. Specifically, she claims that the record demonstrates that she presented uncontroverted evidence establishing in the affirmative the three requisite issues of § 577.041.4, that: (1) the respondent was arrested; (2) the arresting officer had reasonable grounds to believe that the respondent was driving while intoxicated (DWI), and (3) the respondent refused to submit to a blood test as requested by the arresting officer and as authorized by § 577.020.
Because this is a judge-tried case, we are to affirm the judgment of the trial court, ordering, in accordance with § 577.041, the Director to reinstate the respondent's driver's license for refusal to submit to a test authorized by § 577.020, unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares and/or applies the law. Flaiz v. Dir. of Revenue , 182 S.W.3d 244, 247 (Mo.App. 2005). We will reverse a judgment reinstating a driver's license, in accordance with § 577.041.5, as being against the weight of the evidence, only if we have a firm belief that the judgment is wrong. Id. Section 577.041.3 mandates that the Director revoke, for one year, the driver's license of a person under arrest for DWI for refusing, when requested by the arresting officer, to submit to a chemical test, authorized by § 577.020. Pursuant to § 577.041.4, "[i]f a person's license has been revoked because of the person's refusal to submit to a chemical test, [as authorized by § 577.020], such person may petition for a hearing before a circuit or associate circuit court in the county in which the arrest or stop occurred[,]" seeking to have the revocation set aside and to have his license reinstated.
The Director has the burden of proof at the hearing. Flaiz , 182 S.W.3d at 248. In order to make a prima facie case for upholding a § 577.041.3 revocation for a refusal in a DWI case, the Director is required to show, by a preponderance of the evidence, Tarlton v. Dir. of Revenue , 201 S.W.3d 564, 568 (Mo.App. 2006), that: (1) the driver was arrested; (2) the arresting officer had reasonable grounds to believe the driver was DWI; and (3) the driver refused to submit, as requested, to a test, as authorized by § 577.020, to determine the amount of alcohol in the driver's blood. § 577.041.4; Flaiz , 182 S.W.3d at 248. If the trial court finds any of the three requisite issues of the Director's case for revocation not to be in the affirmative, it shall order the Director to reinstate the driver's license. § 577.041.5; Flaiz , 182 S.W.3d at 248. "If the Director makes a prima facie case, the burden then shifts to the driver to rebut that case by a preponderance of the evidence." Roberts v. Wilson , 97 S.W.3d 487, 492 (Mo.App. 2002).
In its judgment, the trial court found that the Director had failed to make a prima facie case, in accordance with § 577.041.5, for revoking the respondent's driver's license for refusing to submit to the blood test requested by Sergeant Arnold. Specifically, the court found all three issues of § 577.041.4 in the negative. In that regard, the Director contends that the record clearly demonstrates that she made a prima facie case for revocation, in accordance with § 577.041.3, because she presented uncontroverted evidence establishing, in the affirmative, all three issues of § 577.041.4 such that the trial court, as a matter of law, had no choice but to find that she had made a prima facie case for upholding her revocation of the respondent's driver's license.
In claiming as she does, the Director contends that if we find from the record that her evidence not only established the three issues for establishing a prima facie case for upholding the revocation of the respondent's driver's license, in accordance with § 577.041.5, but was also uncontroverted, then the trial court, as a matter of law, could not have disregarded that evidence on the basis of credibility or otherwise, such that, as a matter of law, the court could not have found that she had failed to make a prima facie case for upholding the revocation. The Director's contention that the trial court lacked discretion to disregard her uncontroverted evidence in determining whether she made a prima facie case for upholding the respondent's revocation is predicated on her understanding of the law as to our standard of review in § 577.041.4 cases.
Consistent with her contention, as to our standard of review, is this court's opinion in Flaiz , in which we stated, in pertinent part:
When the Director's evidence is uncontroverted or admitted so that the real issue is a legal one as to the legal effect of the evidence, then there is no need to defer to the trial court's judgment. We cannot disregard the Director's uncontroverted evidence and presume that the trial judge found a lack of credibility in order to affirm the judgment. But, where evidence is presented which, if believed, would support a finding in favor of one party, but contrary or inconsistent evidence is also presented, then it is up to the judge to resolve the factual issues, including determining the credibility of witnesses. So long as its determination is supported by substantial evidence, we will affirm, regardless [of] whether we would have reached the same result.
182 S.W.3d at 247 (internal quotation marks and citations omitted). However, since Flaiz , and other cases holding likewise, the Missouri Supreme Court decided York v. Director of Revenue , 186 S.W.3d 267 (Mo. banc 2006), which was handed down on March 21, 2006, and by which we are bound as the most recent pronouncement of the Court on the issue, State v. Burgin , 203 S.W.3d 713, 717 (Mo.App. 2006). In that regard, this court, in Guhr v. Dir. of Revenue , No. WD 65762, 2006 WL 2471601, at *6-7 (Mo.App.W.D. August 29, 2006), which is now on transfer to the Supreme Court, interpreted York as holding that the trial court is free to disregard the Director's evidence, even though uncontroverted, in determining whether the Director makes a prima facie case, in accordance with § 577.041.4, for upholding the revocation of a driver's license.
Staying consistent with this court's interpretation of York in Guhr , even if the Director is correct that she presented uncontroverted evidence, from which the three requisite issues of § 577.041.4 for making a prima facie case for upholding her revocation of the respondent's driver's license could be found or inferred, the trial court, in its discretion, was still free to disregard the Director's evidence and draw inferences contrary to the requisites for establishing a prima facie case for upholding revocation and to set aside the revocation for failure to make a prima facie case on that basis. Consequently, if the Director's evidence, regarding the three requisite issues of § 577.041.4, can be construed by us as allowing the trial court to find in the negative as to one or more of those issues, then we must affirm the trial court's judgment reinstating the respondent's driver's license, in accordance with § 577.041.5. And, because we find that the trial court could have found, from the Director's uncontroverted evidence, in the negative as to the requisite issue of reasonable grounds that the respondent was DWI, we affirm.
The dissent contends that interpreting York as we do, consistent with Guhr , is incorrect, arguing that York was a unique case that should be confined to its own facts because the cross-examination of the arresting officer was so thorough and effective that it worked to controvert the Director's evidence. Hence, the dissent argues that, in deferring to the trial court's decision, the York court was not changing the standard of review with regard to uncontroverted evidence, but was simply applying the rule that when the evidence is controverted, appellate courts defer to the trial court's decision. However, in making this argument, the dissent ignores the clear language of the Court in York , relied on by this court in Guhr , that:
The circuit court correctly noted that the only uncontroverted indicia of York's intoxication were the smell of alcohol, the fact that York's eyes were watery, bloodshot and glassy, and York's admission to drinking one or two beers. However, the trial court, in its discretion, was free to draw the conclusion that there was no probable cause based upon its assessment of this evidence and the officer's own equivocation of the existence of probable cause.
York , 186 S.W.3d at 272 (emphasis added). Hence, regardless of the possible logic of the dissent's argument as to York , it defies what the Court said. As such, we are bound by law to reject the dissent's reasoning and its conclusion, leaving us with the issue of whether the record, in light of our interpretation of the law, including York , supported the trial court's judgment reinstating the respondent's license.
As noted, supra, the Director had the burden to establish all three elements in order to revoke the respondent's driver's license, § 577.041.5; Flaiz , 182 S.W.3d at 248, and, in this case, the trial court found all three issues in the negative. Thus, if we determine that the trial court was correct in finding in the negative as to any one of the three required elements of the statute, we must affirm its judgment, and because we find that the trial court's reinstatement of the respondent's license is justified by the record on the basis that there were not reasonable grounds to arrest him for DWI, we review on that issue alone. In that regard, as we noted in Flaiz :
Reasonable grounds to arrest a driver for DWI to support a revocation for refusal is virtually synonymous with probable cause to arrest a driver. Probable cause to arrest exists when the arresting officer's knowledge of the particular facts and circumstances is sufficient to warrant a prudent person's belief that a suspect has committed an offense. In determining whether there were reasonable grounds to arrest a driver for DWI, the trial court must evaluate the situation from the viewpoint of a cautious, trained, and prudent police officer at the time of the arrest. There is no precise test for determining whether reasonable grounds existed; rather, it is based on the particular facts and circumstances of the individual case. [W]hat is at issue in a refusal case is whether the officer had reasonable grounds to believe [d]river was intoxicated, not whether [he] was actually intoxicated.
182 S.W.3d at 248 (internal citations and quotation marks omitted).
Here, at the § 577.041.4 hearing, the Director, in making a case for upholding the revocation of the respondent's license for a refusal, relied solely on the testimony of Sergeant Arnold. In that regard, he testified, concerning the issue of probable cause to arrest the respondent for DWI, that when he arrived on the scene, the respondent's Ford pickup had been involved in a single-vehicle accident and was overturned in a ditch. When speaking to the respondent, Sergeant Arnold detected a moderate odor of alcohol coming from his breath. When asked about the odor, the respondent admitted to having drunk a few beers. Consequently, Sergeant Arnold performed a partial horizontal gaze nystagmus test on the respondent's left eye and observed a lack of smooth pursuit and nystagmus at maximum deviation. Among the debris of the accident, Sergeant Arnold found an unopened beer can and an empty 12-pack beer carton. The trial court contends that this evidence was insufficient to establish that Sergeant Arnold had reasonable grounds to believe that the respondent was DWI. In that regard, the trial court, in its judgment, found that:
Upon due consideration of the evidence, the court finds: 1) The only test used by Sergeant Arnold is the Horizontal Gaze Nystagmus test of one eye that showed a failure in two of three points. Sgt. Arnold could not remember any person arrested for DWI on such limited testing 2) the "field of debris" at the scene shows no clear evidence of alcohol consumption, i.e., empty bottles or cans of alcohol. There is a full can and empty box. Understandably there is no way to conduct a walk and turn test, or a test of stability of standing, but no counting, no alphabet or other mental dexterity tests were made. These seem crucial when the individual is so restrained. The officer indicates "moderate odor of intoxicants" but the petitioner's mouth is covered and an oxygen mask covers his lower face. This odor may not — likely is not coming from his breath, as it is not released where the Sergeant can smell it. There simply is not enough grounds for the officer to conclude the petitioner was driving while in an intoxicated condition.
Even accepting the Director's evidence as true, which under York we are not required to do, the trial court could have found the issue of probable cause to believe that the respondent was DWI, either in the affirmative or the negative. And, because, in accordance with York , we must defer to the trial court's determination that the Director failed to establish that Sergeant Arnold had reasonable grounds to believe the respondent was DWI, we must affirm the court's judgment reinstating the respondent's driver's license.
Point denied.
Conclusion
The judgment of the Circuit Court of Callaway County, reinstating the respondent's driver's license, in accordance with § 577.041.5, is affirmed.
Hardwick, J., concurs.
Smart, J., dissents in separate opinion.
Dissenting Opinion
I would reverse. The driver, Darrell Fick, failed to properly control his vehicle and drove into a ditch. He then demonstrated further lack of judgment consistent with alcohol impairment by overturning his vehicle in an effort to get out of the ditch. He admitted drinking "a few beers." The only field sobriety test that the officer could do was a horizontal gaze nystagmus of the left eye. That test was consistent with intoxication. The officer observed physical evidence (an empty beer carton) which was consistent with Fick's admission that he had been drinking beer.
That evidence, standing alone, would not be enough to convict a driver of driving while intoxicated. Nor would the admission of having had some beer, standing alone, equate to probable cause. Nevertheless, in view of the driver having caused an injury accident with no apparent reason other than abnormal and erratic driving, any reasonably prudent law enforcement officer is going to make the arrest in those circumstances. Such an arrest is neither unlawful nor unreasonable. The officer made the arrest by informing Fick that he was under arrest. See Smither v. Director of Revenue, 136 S.W.3d 797, 798-99 (Mo. banc 2004). It was unnecessary, and would have been inappropriate, to handcuff him or otherwise try to physically restrain him. The officer read the Missouri Implied Consent Law to Fick, and asked him if he would submit to the test. Fick said "no." The Director thus met all of the elements of a prima facie case. See Section 577.041.4 Cum. Supp. 2005.
If the evidence is uncontradicted, such that the real issue is strictly a legal one regarding the legal effect of the evidence, then there is no need to defer to the trial court's judgment concerning credibility. Hinnah v. Director of Revenue, 77 S.W.3d 616, 620 (Mo. banc 2002).
York v. Director of Revenue, 186 S.W.3d 267 (Mo. banc 2006) does not mandate affirmance in this case. In York, the driver had not been driving in any unusual or erratic fashion. He simply happened to be one of the persons required to stop at a sobriety checkpoint. He did not drive into a ditch and did not exhibit compromised driving judgment in any respect. The trooper detected a "strong odor of alcohol" and noticed that the driver's eyes were "watery, bloodshot, and glassy." The trooper acknowledged that these things alone were insufficient to provide probable cause, so the officer administered the portable breath test (PBT) although the officer admitted on cross-examination she had no formal training in how to do the test, and no knowledge as to the machine's reliability. The Court also noted that the officer "improperly administered" all of the field sobriety tests, and that the improper administration of the tests "compromised their validity." The officer admitted these facts on cross-examination.
After the cross-examination by the driver's attorney effectively destroyed the officer's testimony in York as to PBT and the field sobriety tests, the only possible basis of probable cause remaining was the odor of alcohol and the condition of the driver's eyes. The officer admitted at trial that these were insufficient for probable cause. York, therefore, should not be seen as a case in which the Director's evidence was uncontradicted and simply disbelieved; it is a case in which the Director's evidence was self-discrediting. Id. at 269. The cross-examination of the inexperienced checkpoint officer was so unusually effective that the court held that the testimony of the trooper "controverts and discredits the Director's evidence of probable cause." Id. at 272.
It is not so in this case. Here, the erratic and unusual driving resulted in a one-car accident with no apparent cause other than driver impairment, causing the need for an emergency medical response. The significance of that fact would not be lost on a reasonably prudent officer. While that fact alone does not yield probable cause, the officer's overall experience and observations at the scene, including the driver's comments, gave rise to probable cause. Though the horizontal gaze nystagmus was conducted as to only the left eye because that was all that the circumstances would permit, there was no indication here, unlike what occurred in York, that the gaze nystagmus was improperly administered. Here also, there was no disclosure in the cross-examination that the officer lacked competent training or was fabricating. The trial court may have thought the officer seemed less than credible, but the officer was not impeached, and there was no contradiction to the Director's case. The driver had no recollection of any of the events of the day, and thus could not contest the officer's observations.
In this case, therefore, we have the erratic driving causing an injury to the driver; we have the admission of the driver as to having consumed some beers; we have the odor of intoxicants; and we have the horizontal gaze nystagmus test, which was the only test that the officer could do. The trial court did not believe there was an odor of intoxicants because the driver was being administered oxygen when the officer arrived. What caused the trial court to assume that the driver would have tried to talk through the oxygen mask to answer the questions rather than momentarily removing the mask? The record does not say. It cannot be said that the officer's testimony was either self-contradictory or entirely improbable. Again, while the officer's testimony, standing alone, would not be enough to support a conviction for DWI, it is enough probable cause to motivate a reasonable and prudent officer to make the arrest.
We must be careful we do not read too much into York. In particular, we must not read into York something that was not intended — an intention to change the standard of review as to uncontroverted evidence. The Court in York noted that there were obvious credibility problems with the Director's evidence. Id. at 272. I do not perceive the Court to be saying that trial courts can, as a matter of discretion, reject on credibility grounds evidence that has not been discredited or contradicted. Had the Court intended to adopt such a rule, I believe it would have indicated it was doing so. Instead, I read York as holding that: 1) PBT results do not necessarily contribute to probable cause when the officer admits that she lacked proper training in the use of the device; and 2) field sobriety tests do not necessarily contribute to probable cause when the officer admits that the tests were improperly administered.
We must also keep in mind that this case is only about whether the Director had a prima facie case based on the uncontradicted evidence. It is not about whether the trial court could believe any rebuttal evidence presented by the driver (because here there was no rebuttal evidence). The trial court is bound by the Director's evidence only 1) to the extent that it survives cross-examination, and 2) to the extent it is not rebutted. York is consistent with these principles.
Applying the normal principles of review, I would hold that the Director made a prima facie case. I would reverse the judgment reinstating the driver's license.