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Sterneker v. Director of Revenue8/10/1999
This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.
Appeal From: Circuit Court of Daviess County, Hon. Stephen K. Griffin
Opinion Vote: REVERSED. Smith, P.J., and Hanna, J., concur.
The Department of Revenue's director challenges the circuit court's Conclusion that a police officer becomes merely a private citizen when he arrests a driver for driving while intoxicated outside his jurisdiction's limits. The director appeals the circuit court's judgment setting aside the director's revocation of John David Sterneker's driving license for driving while intoxicated. We reverse the circuit court's judgment and order reinstatement of the director's decision to revoke Sterneker's license.
The director revoked Sterneker's license after a breath test administered by Gallatin police on August 29, 1997, indicated that his blood alcohol concentration was .173 percent. Officer Doug Hamilton arrested Sterneker about three miles beyond Gallatin's city limits. Hamilton had followed Sterneker's vehicle from Gallatin after seeing Sterneker speeding inside the city limits. While Sterneker's vehicle was still inside Gallatin's city limits, Hamilton turned on his emergency lights and attempted to stop the vehicle. Sterneker, however, did not stop his vehicle, and Hamilton continued to follow him. Sterneker finally stopped his vehicle three miles outside the city limits.
Hamilton smelled alcohol on Sterneker's breath and noticed that Sterneker's eyes were dilated and semi-glossy. Sterneker admitted that he had been drinking. Sterneker "failed" several field sobriety tests that Hamilton asked him to take: the walk-and-turn test, one-leg stand test, and the horizontal gaze nystagmus test.
Hamilton arrested Sterneker for violating a Gallatin city ordinance that prohibited a driver from operating a motor vehicle while intoxicated. Hamilton took Sterneker to Gallatin police headquarters, and Sterneker consented to a breath test. The test results showed that Sterneker had a blood alcohol content of .173 percent.
The director revoked Sterneker's driving license under section 302.505, RSMo Supp. 1998, for operating a motor vehicle with a blood alcohol concentration of at least .10 percent. Sterneker filed a petition for a trial de novo with the circuit court. After a trial, the circuit court found that Hamilton had probable cause to stop Sterneker and to arrest him for driving while intoxicated. The circuit court, however, sua sponte, raised the issue of whether Hamilton had authority to arrest Sterneker outside Gallatin's city limits. The circuit court took the issue under advisement and, on July 31, 1998, entered a judgment setting aside the director's revocation of Sterneker's driving privilege. The circuit court said:
The Court finds that the arresting officer was not proven to have "fresh pursuit" authority, as no evidence was presented as to the requisite election required by Mo. Rev. Stat. section 544.157(4). The Court further finds that the officer to be a private citizen as he was outside his territorial boundaries at the time of arrest, and inasmuch as private citizens do not have the right or privilege to stop and detain persons believed to have committed ordinance violations or traffic offenses, the arresting officer was not a "law enforcement officer" pursuant to Mo. Rev. Stat. section 302.500 et seq, and therefore, the [director] has failed in its burden of proof.
This court ruled on this precise issue in Jennings v. Director of Revenue, 992 S.W.2d 249 (Mo. App. 1999). As in Jennings, the circuit court erred in concluding that the director failed to meet her
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