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Kearney v. Director of Revenue8/24/1999
Appeal From: Circuit Court of St. Louis County, Hon. Patrick Clifford
Opinion Vote: AFFIRMED. Crane and Mooney, JJ., concur.
Opinion:
Director of Revenue (Director), appeals from a final judgment of the Circuit Court of St. Louis County setting aside the suspension of the driving privilege of Stephen Patrick Kearney (Driver) after a trial de novo pursuant to section 302.535 RSMo (Cum.Supp. 1997).
On appeal, Director contends that the trial court erred by: (1) setting aside the Director's action against Driver's driving privilege under section 302.505 RSMo 1994 (all further references will be to RSMo 1994 unless otherwise indicated) because the evidence showed that the arresting officer had probable cause to arrest Driver for driving while intoxicated and that his blood alcohol content (BAC) was at least .10 percent by weight; and (2) sustaining Driver's hearsay objection and striking the testimony of the arresting officer concerning eyewitness reports of Driver's erratic driving because this evidence was admissible to prove that the officer had probable cause to arrest Driver for driving while intoxicated in that (a) an arresting officer may rely on hearsay from eyewitnesses to establish probable cause for arrest, and (b) this evidence was not offered for the truth of the matter asserted but to explain the arresting officer's reasonable belief that probable cause existed to arrest Driver. We affirm.
In reviewing a court tried case, we affirm the judgment of the trial court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.banc 1976).
The record on appeal shows that at approximately 11:50 p.m. on the evening of December 22, 1997, St. Louis County Police Officer Melissa Varga responded to the scene of an accident at the area of the intersection of Baumgartner and Lemay Ferry Road in St. Louis County. Upon arriving at the scene, Varga observed Mehlville fire protection district personnel extricating Driver from a blue vehicle that was lodged underneath the bed of a tractor-trailer. After being pulled from the wreckage, Driver was placed in an ambulance where Varga made contact with him. She observed that Driver sustained injuries to his forehead and facial area and was bleeding from the same. Varga testified that Driver admitted he had been driving the vehicle. Varga further testified that Driver's speech was slurred, his eyes were watery, bloodshot, glassy and dilated, that his clothing was mussed and that she noticed a moderate odor of alcohol on his breath. Driver responded "No" when Varga asked him whether he had been drinking. No field sobriety tests were administered at the scene of the accident. Varga testified that it was at this time that she asked Driver "what had happened." She initially testified that Driver told her that he was making a right turn onto Lemay Ferry from Baumgartner, but the truck was in his lane, which caused the vehicles to collide. Later, upon being recalled by Driver, Varga voluntarily changed her testimony, stating that "Driver said he was making a left-hand turn... when he was actually making a right-hand turn." After her initial contact with Driver, Varga spoke to several eyewitnesses, including the driver of the other vehicle involved in the accident. All of these eyewitnesses stated that Driver left the roadway for an unexplainable reason, re-entered the roadway, changed lanes and struck the trailer.
Driver was transported to St. Anthony's Medical Center's emergency room where Varga placed him under arrest for driving while intoxicated, pu
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