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Spry v. Director of Revenue, State of Mo.9/28/2004
The Director of Revenue ("Director") appeals from a judgment of the circuit court setting aside the one-year driver's license revocation, pursuant to § 577.041, of Ronda Spry ("Spry") for refusing to submit to a breathalyzer test after she was arrested for driving while intoxicated. [FN1] The Director contends the trial court erred in granting Spry's motion for a "directed verdict" at the close of the Director's evidence because she made a prima facie case for revocation, which Spry failed to rebut. We reverse and remand the case for further proceedings.
FN1. All references to statutes are to RSMo (2000).
I. Statement of Facts and Procedural History
At approximately 11:00 p.m. on May 2, 2003, Officer Ronnie Houdyshell ("Officer Houdyshell") of the Carterville Police Department received a dispatch directing him to proceed to the corner of Main and Hatcher in Carterville. Residents at that location had called the police department and reported seeing an intoxicated person pull up in a vehicle and then slump over.
Officer Houdyshell drove to the corner of Main and Hatcher and found Spry sitting in the passenger's seat of the vehicle. She appeared to be asleep. After backup arrived, Officer Houdyshell tried to awaken her and finally succeeded in doing so. When Spry opened the passenger's side door, Officer Houdyshell observed a half-empty bottle of vodka and a beer bottle inside the vehicle. Spry appeared to be extremely intoxicated. Officer Houdyshell did not personally observe Spry operating the vehicle, and he could not tell if the engine was warm. He did not find any *366 other property in the car, however, suggesting there had been another driver. When Officer Houdyshell asked Spry how she had gotten there, she simply replied, "Me."
Because Spry's car was right off the highway, she was transported to the Carterville Police Department so field sobriety tests could be safely performed. Spry admitted that she had been drinking earlier in the evening, but she did not say how much she had to drink. After these tests were concluded, Officer Houdyshell had reason to believe Spry was very intoxicated. She was arrested for driving while intoxicated and asked to take a breathalyzer test using a DataMaster machine. Spry was told that, if she refused to take the test, her driver's license could be revoked for one year and evidence of her refusal could be used to prosecute her.
Spry agreed to take the test and attempted to do so, but she only blew into the DataMaster for five to ten seconds and then stopped. Officer Houdyshell advised Spry that he did not get an adequate breath sample. She attempted to take the test again, but she "just quit blowing" and failed to give an adequate breath sample. Officer Houdyshell explained to Spry a second time that her license could be revoked if she did not provide an adequate sample. She understood what she was told, but she did not try to give a sample any more. According to Officer Houdyshell, "[s]he just quit."
Pursuant to § 577.041.3, the Director revoked Spry's driver's license for one year. She filed a petition for review of this administrative determination and requested a trial de novo in circuit court, as permitted by § 302.311. At the hearing, the Director called Officer Houdyshell as its only witness, and he gave the testimony summarized above. The officer was not cross-examined by Spry's counsel. Instead, he orally moved for a directed verdict, which the trial court sustained. [FN2] The trial court entered a judgment for Spry which stated that the "Court finds in favor of Petitioner [Spry] and finds no probable cause to believe Defendant was driving while intoxicated." The Director filed a timely notice of appeal from the judgment.
FN2. The record on appeal is incomple
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