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Dillon v. Director of Revenue9/7/1999
The Director of Revenue appeals the judgment of the trial court reinstating Cary Lee Dillon's driving privileges. The Director claims that the trial court's finding that the Director failed to make a prima facie case for suspension of Mr. Dillon's driving privileges is based upon a misapplication of the law and is against the weight of the evidence. Because this court finds that the Director made a prima facie case for suspension of Mr. Dillon's driving privileges, the trial court's judgment is reversed and the cause is remanded for a new trial.
Factual and Procedural Background
On August 15, 1996, at approximately 12:30 a.m., Officer Danny Pendleton of the Lake Ozark Police Department observed a blue Chevy S-10 pickup traveling at a speed in excess of the posted limit. After following the truck for approximately one-quarter mile with the patrol cruiser lights engaged, the officer observed the truck pull into a Jiffy Stop parking lot. As the driver alighted from the vehicle and began walking toward the store, the officer approached him. The officer asked the man for his driver's license and told him that he had been driving in excess of the speed limit. The man gave the officer his license, which revealed that he was Cary Dillon. According to Officer Pendleton, Mr. Dillon appeared nervous during the stop, and the odor of intoxicating liquor was emanating from his person. Officer Pendleton also observed that Mr. Dillon's speech was "a little slurred."
Officer Pendleton asked Mr. Dillon if he had been drinking and Mr. Dillon responded that he had consumed approximately three beers at Risky's, a local bar and restaurant. Officer Pendleton then asked Mr. Dillon to perform the three field sobriety tests which are standardized on the Missouri Alcohol Influence Report -- the one leg stand, the walk-and-turn and the gaze nystagmus. Officer Pendleton was trained to administer and evaluate all three field sobriety tests. Mr. Dillon failed the gaze nystagmus and the walk-and-turn tests. He did not satisfy two "pointers" of the one leg stand and "barely passed" that test. From his observation of Mr. Dillon, Officer Pendleton concluded that he was under the influence of alcohol. He then placed Mr. Dillon under arrest and took him to the Lake Ozark Police Department for processing and a breathalyzer test.
At the police station, Officer Pendleton read Mr. Dillon the Miranda warnings and the Implied Consent statement from the Department of Revenue Alcohol Influence Report. He then asked Mr. Dillon if he would consent to a breathalyzer test to determine his blood alcohol content. Mr. Dillon agreed to take the test. Officer Pendleton, a certified operator of the breathalyzer machine, then prepared and used the BAC Data Master to test Mr. Dillon's blood alcohol content. Pursuant to the Department of Health regulations, Officer Pendleton stayed with and observed Mr. Dillon for fifteen minutes before administering the test. During that time, Mr. Dillon did not have anything to eat or drink, he did not vomit or smoke, or otherwise place anything in his mouth. While administering the test to Mr. Dillon, Officer Pendleton utilized the machine operational checklist set forth on the Department of Revenue Alcohol Influence Report, and performed each of the functions as listed on the report checklist. According to Officer Pendleton, the machine was not malfunctioning at the time of the test and Mr. Dillon blew a sufficient sample for testing. After Mr. Dillon blew into the breathalyzer machine, the machine indicated that his blood alcohol content was .15%.
The Department of Revenue suspended Mr. Dillon's license for driving under the influence. Mr. Dillon requested a trial
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