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Prozorowski v. Director of Revenue2/29/2000
a strong smell of an intoxicating beverage on his breath and asked me to conduct field sobriety tests. Based on my observations of Prozorowski's physical condition and the results of the field sobriety tests I placed him under arrest for DWI.
Morris specifically listed on his report that Wolfe saw Prozorowski driving the motor vehicle. Morris also noted on the report that he observed a strong odor of alcohol on his breath, his eyes were bloodshot and his pupils dilated. He was also swaying and slurred his speech.
The case at hand is virtually indistinguishable from the recent case of McCabe v. Director of Revenue, No. ED75430 & ED75436 (Mo. App. E.D., filed Oct. 5, 1999). In McCabe, an off-duty officer observed McCabe driving his vehicle and swerving back and forth across the center lane, but the arresting officer did not see these actions. Id., slip op. at 2. At trial, the Director offered the Alcohol Influence Report prepared by the arresting officer and containing the off-duty officer's observations as relayed to the arresting officer. Id., slip op. at 2-3. McCabe objected to the report on the basis of hearsay statements made by the off-duty officer to the arresting officer. Id., slip op. at 3. The trial court agreed and found the arresting officer did not have probable cause to arrest McCabe. Id. We reversed, finding the off-duty officer's statements were admissible hearsay to determine if the arresting officer had probable cause to arrest, because they are not offered for their truth, but instead to explain a basis for a belief that probable cause exists. Id. Further, the arresting officer may rely upon official information provided by another officer when determining if there is probable cause. Id., slip op. at 4.
Relying on McCabe, we find the evidence provided in the Alcohol Influence Report was sufficient to establish the State's burden that the arresting officer had probable cause to arrest Prozorowski for driving while intoxicated. See also, Pendergrass v. Director of Revenue, 4 S.W.3d 599 (Mo. App. E.D. 1999). Prozorowski offered no evidence to rebut this. In addition, there can be no issue of credibility where no one testified at the trial. While we give great deference to a trial judge's determination regarding the credibility of witnesses, in cases submitted solely upon a written record, no such deference is warranted. Director of Revenue v. Christman, 968 S.W.2d 737, 739 (Mo. App. E.D. 1998). Therefore, the trial court's finding that the arresting officer did not have probable cause to arrest Prozorowski for driving while intoxicated is against the weight of the evidence and is not supported by substantial evidence.
The judgment is reversed and remanded with directions to reinstate the Director's suspension of Prozorowski's driving privileges.
Separate Opinion:
None
Page 1 2 Missouri DUI Attorneys
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