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Covert v. Fisher10/19/2004
Petitioner appeals from the judgment of the circuit court upholding the suspension of petitioner's driver's license by the Director of Revenue (the director) pursuant to Section 302.505 RSMo (2001 Supp.). The suspension was based on petitioner's arrest for driving a golf cart while intoxicated on the streets of a private subdivision. On appeal, petitioner contends that the circuit court erred in upholding the suspension because the golf cart was not a motor vehicle, and also erred in taking judicial notice of other persons' use of golf carts. We affirm.
On May 11, 2002, at approximately 7:04 p.m., Corporal John Oliveras of the Missouri State Highway Patrol responded to a report of an accident with injuries on Deborah Drive at Judith Circle in the Las Bresas Lake subdivision in Franklin County, Missouri. Upon arriving at the scene, Corporal Oliveras observed an overturned golf cart partially on and partially off the roadway at the intersection of Deborah Drive and Judith Circle. He saw children being attended by firefighters and EMS personnel. He determined that the golf cart may have struck a sign on the side of the road, had overturned, and had ejected the driver and several children, and that petitioner had been pinned under the driver's side of the cart. The golf cart was a 1997 Easy-Go model with an internal combustion engine, steering wheel, accelerator pedal, brake pedal and roll bar.
Corporal Oliveras spoke with petitioner, who was on a gurney in the back of an ambulance. Corporal Oliveras testified that petitioner said he had been "riding" in the golf cart with his four-year-old son on his lap and three or four other passengers. He had "turned in" and hit a sign. When Corporal Oliveras asked petitioner if he had been drinking, petitioner responded that he had "a couple of beers." Corporal Oliveras observed that petitioner's eyes were bloodshot and watery, there was a strong odor of intoxicants on petitioner's breath, and his speech was slurred and somewhat difficult to understand.
Corporal Oliveras performed a horizontal gaze nystagmus test on petitioner. He asked petitioner to recite the alphabet, and petitioner said he did not know it. He did not administer any other field sobriety tests because petitioner was in the ambulance and the paramedics wanted to leave. Corporal Oliveras concluded that petitioner had been driving while intoxicated. Corporal Oliveras told petitioner he was under arrest for operating a motor vehicle while intoxicated, and another officer would contact him when he arrived at the hospital.
Corporal Oliveras testified that police have jurisdiction to patrol the Las Bresas Lake subdivision. Emergency vehicles, mail delivery vehicles, and members of the public may freely drive into the subdivision. On cross-examination, he testified that the subdivision roads are private roads, maintained by the subdivision and not by the state or the county, but are "open for use."
Trooper Ryan Barr proceeded to the emergency room at St. John's Mercy Hospital where he contacted petitioner. Trooper Barr informed petitioner of his Miranda rights and his rights under the Implied Consent Law. Trooper Barr asked petitioner the questions from the Alcohol Influence Report. Petitioner agreed to a blood alcohol test at Trooper Barr's request, which was performed by a qualified phlebotomist. Petitioner's blood test results showed .16% blood alcohol by weight.
*2 The director thereafter suspended petitioner's driver's license pursuant to Section 302.505 RSMo (2001 Supp.), and the suspension was upheld after a hearing. Petitioner filed a petition for a trial de novo in the Circuit Court of Franklin County pursuant to Section 302.311 RSMo (2000), requesting the court to set aside the suspension of petitioner's driving privil
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