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McCabe v. Director of Revenue10/5/1999
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 WITH DIRECTIONS. Karohl and Hoff, JJ., concur.
The Director of Revenue (Director) appeals from the judgment reinstating Kevin McCabe's driving privileges. We reverse and remand.
On September 25, 1997, a St. Louis County police officer arrested McCabe for driving while intoxicated. According to the officer, McCabe refused to submit to a breath test. Director notified McCabe that pursuant to section 577.041 RSMO Cum. Supp. 1997, his driving privileges would be revoked for one year for refusing to submit to a breath test. McCabe filed a petition for review of the revocation in St. Louis County Circuit Court.
At trial, Director offered an exhibit that included in part an Alcohol Influence Report signed by the arresting officer. McCabe objected to a portion of the report. The commissioner took the objection under advisement. Director offered no additional evidence and McCabe offered no evidence. The commissioner found that the arresting officer did not see McCabe operating the motor vehicle and did not have probable cause to arrest McCabe. The commissioner also found that McCabe did not refuse to take the breath test. The commissioner recommended that the circuit court reinstate McCabe's driving privileges. The circuit court signed the commissioner's findings and recommendations as the judgment of the court. Director appeals from this judgment.
The judgment will be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Tharp v. Director of Revenue, 969 S.W.2d 330, 331 (Mo. App. E.D. 1998). In a proceeding where a person's license has been revoked for refusal to submit to a breath test, the trial court shall determine (1) whether the person was arrested, (2) whether the arresting officer had reasonable grounds to believe that the person was driving a motor vehicle while in an intoxicated condition, and (3) whether or not the person refused to submit to the test. Section 577.041.4 RSMO Cum. Supp. 1997; Harder v. Director of Revenue, 969 S.W.2d 340, 341 (Mo. App. E.D. 1998).
The parties do not dispute that the officer arrested McCabe. We first address the court's finding that the arresting officer did not have probable cause to arrest McCabe for driving while intoxicated. Attached to the Alcohol Influence Report is a page titled "NARRATIVE INFORMATION." A part of the "NARRATIVE INFORMATION" provides certain statements by the arresting officer regarding the circumstances prior to McCabe's arrest. The arresting officer states:
I responded to a call to meet an off duty officer . . . who stated that while traveling south on Bellefontaine, he observed a 1996 Jeep Cherokee, black in color occupied by one white male, to be swerving back and forth across the center line.
[The off duty officer] further stated that at the intersection of Bellefontaine and Larimore he passed the black Cherokee on the left and continued south on Bellefontaine . . ..
The driver of the black Cherokee later identified as Kevin McCabe, then accelerated and got directly behind [the off duty officer]. Due to the erratic driving of Kevin McCabe, [the off duty officer] pulled to the right and stopped on the shoulder of Bellefontaine at the intersection of Dunn, in an effort to allow Kevin to pass. Kevin then came to an abrupt stop directly behind [the off duty officer] and stated [an obscenity.] [The off duty officer] then o
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