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Myers v. Director of Revenue11/23/1999
This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.
Appeal From: Circuit Court of St. Louis County, Hon. Robert S. Cohen
Opinion Vote: REVERSED AND REMANDED. Simon and J. Dowd, JJ., concur.
Opinion:
The Director of Revenue ("Director"),appeals from the circuit court's judgment reinstating the driving privileges of Patrick W. Myers ("driver"). We reverse and remand.
Director revoked driver's driving privileges for one year for refusing to take a breathalyzer test pursuant to section 577.041, RSMo Cum. Supp. 1997. Driver then filed a petition for review with the circuit court. The court assigned the petition to a commissioner for hearing.
On January 4, 1999, the parties submitted the matter on the record and no hearing was held. Director filed certified records from the Department of Revenue. These records included the notice of revocation, Alcohol Influence Report and Missouri Driver Record of driver. Officer Thomas Taylor prepared the Alcohol Influence Report. In the report, Officer Taylor indicates that he was contacted by Police Officer Ziehl at 3:57 a.m. on May 31, 1998, to assist with a driver at the Jack in the Box restaurant ("restaurant"), in St. Louis County. Upon his arrival, Officer Ziehl told him that he found two men sleeping in the front seat of a car at the drive-thru window of the restaurant. After several attempts, Officer Ziehl was able to awaken the men. Officer Ziehl had the driver of the vehicle step out of the car and he told the passenger to stay put. While Officer Ziehl was completing his investigation of the driver, the passenger crawled over the console into the driver's seat of the car and began to drive away. Officer Ziehl yelled at him to stop, and he drove into a parking area and stopped, climbing back into the passenger seat. The passenger was later identified as driver.
When Officer Taylor arrived, he asked driver to step from the car. Officer Taylor immediately smelled a strong odor of an intoxicating beverage coming from driver's face. Driver admitted he had consumed "a lot" of alcohol, at least eight or ten drinks. Officer Taylor administered three field sobriety tests. On the walk-and-turn test, driver was unable to perform the test, using his arms for balance and losing his balance. On the one leg stand test, driver swayed while balancing, used his arms to balance and put his foot down. Officer Taylor administered the gaze nystagmus test, which indicated driver had no smooth pursuit and distinct nystagmus in both eyes. Based on his poor performance on the field sobriety tests, Officer Taylor arrested driver for driving while intoxicated. After being advised of his Miranda rights and the Missouri Implied Consent Law, driver refused to submit to a breathalyzer test.
After the matter was submitted on the record, the commissioner concluded that the arresting officer did not have probable cause to arrest driver for driving while intoxicated. The commissioner recommended that his driving privileges be reinstated. The circuit court adopted the commissioner's recommendation and entered a judgment, ordering Director to reinstate driver's driving privileges. Director now appeals.
In the single point on appeal, Director contends the circuit court erred in reinstating driver's driving privileges because it misinterpreted the law and its decision was against the weight of the evidence. Director argues it proved a prima facie case supporting the revocation of driver's driving privileges because it offered evidence showing the arresting officer had reasonable grounds to believe driver was driving while intoxicated, and drive
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