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Rinne v. Director of Revenue3/7/2000
This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.
Appeal From: Circuit Court of Morgan County, Hon. Patricia Scott
Opinion Vote: REVERSED AND REMANDED. Spinden, P.J. and Ulrich, JJ, concur.
The Director of Revenue (Director) appeals from the order of the circuit court reinstating the driver's license of the respondent, Kenneth O. Rinne (Rinne), after it was administratively suspended for driving while intoxicated (DWI) pursuant to section 302.505, RSMo Cum. Supp, 1996. On appeal, the Director claims that the trial court erred in sustaining the respondent's motion to dismiss for lack of probable cause because the admissible evidence was insufficient to establish the requisite probable cause for the arrest.
The judgment is reversed.
FACTS
In December 1997, Laurie police officer Jim Walker responded to a call notifying him of a wreck on County Road O in Morgan County. Officer Walker arrived at the scene and discovered that Rinne's truck had run off the left shoulder of the road and hit a tree fifty feet from the roadway. Officer Walker found Rinne in the driver's seat attempting to restart the totaled car. Rinne was hurt, mumbling and bleeding from the head. Officer Walker noticed a "moderate odor of intoxicants" emanating from Rinne.
Trooper William Surface of the Missouri Highway Patrol arrived thirty minutes after Officer Walker. Officer Walker conveyed to Trooper Surface that he believed Rinne was intoxicated. Rinne's injuries prevented field sobriety tests. Trooper Surface interviewed Rinne in the ambulance, asking him what had happened, and Rinne responded, "Nothing." Surface then asked if he had been driving alone and Rinne responded, "Yes." Finally, the trooper asked Rinne whether he had been drinking. Rinne replied that he had consumed "three beers." Trooper Surface also noticed a moderate odor of intoxicants on Rinne's breath and that he had watery eyes. Trooper Surface then arrested him for driving while intoxicated and asked Rinne to consent to a blood test at the hospital. Rinne agreed.
Section 302.505, RSMo Cum. Supp, 1996, authorizes the suspension or revocation of a person's license for driving while intoxicated and provides, in pertinent part, as follows:
1. The department shall suspend or revoke the license of any person upon it's determination that the person was arrested upon probable cause to believe such person was driving a motor vehicle while the alcohol concentration in the person's blood, breath or urine was ten-hundredths of one percent or more by weight...
Therefore, the Director had the burden of proving a prima facie case for suspension of a person's license by presenting evidence that: (1) the driver was arrested upon probable cause that he or she was driving in violation of an alcohol-related offense; and (2) the driver had been driving with a blood alcohol content of .10 percent or greater. Haas v Dep't. of Revenue, 975 S.W.2d 483, 484 (Mo.App. 1998). These showings must be made by a preponderance of the evidence. Id.
After the Director had presented evidence, counsel for Mr. Rinne made a motion to dismiss, stating that:
. . . if the arresting officer, Trooper Corporal Surface did not have probable cause to arrest Kenneth O. Rinne for driving while intoxicated (then the case should be dismissed). That he (Trooper Surface) has testified in a manner, which he is not definite, he did not definitely state that he was intoxicated. His observations were that he was polite, cooperative, there was a moderate smell of alcohol, and that he mumbled.
The trial court s
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