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State v. Hodges7/19/1999
This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.
Missouri Court of Appeals Southern District
Appeal From: Circuit Court of Butler County, Hon. W. Robert Cope
Opinion Vote: AFFIRMED. Crow, P.J., and Parrish, J., concur.
Opinion:
A jury convicted John Hodges (Defendant) of driving while intoxicated, section 577.010 RSMo 1994. He was charged as and found to be a persistent offender under section 577.023.1(2). Consequently, his conviction was a class D felony. section 577.023.3. Defendant appeals from the judgment of conviction.
Defendant contends that the trial court plainly erred when it imposed judgment and sentence against him because his conviction resulted from the State's presentation of inadmissible evidence to the jury. Specifically, Defendant asserts that the arresting officer's testimony that he (Defendant) refused to take a breathalyzer test was inadmissible because there was no evidence that the officer informed Defendant that his refusal could be used against him in court as required by section 577.041. Defendant maintains that as a result of the admission of this evidence, he was denied his constitutional rights to due process and a fair trial. We affirm the conviction.
Missouri highway patrolman Thad Wilson stopped Defendant for a traffic violation. During the stop, Wilson discovered that Defendant's operator's license had been revoked and that Defendant did not have proof of insurance. Wilson also noticed that Defendant smelled of alcohol, that Defendant's "speech was sluggish and slurred a little," and that Defendant "wasn't very articulate, . . . and is eyes appeared to be a little bloodshot, pupils a little dilated." Wilson asked Defendant if he had been drinking. Defendant told Wilson, "Yes, he had had a couple of beers." After Defendant failed several field sobriety tests, Wilson arrested him for driving while intoxicated.
After the arrest, Wilson took Defendant to the Butler County jail and asked Defendant to submit to a breathalyzer test. At trial, Wilson testified as follows:
"Q. What happened when you arrived at the jail?"
"A. I advised him of the Missouri Implied Consent Law and requested that he comply with a chemical test of his breath."
"Q. You asked him certain questions regarding that so called breathalyzer test?"
"A. Certain questions?"
"Q. Yes, prior to the test."
"A. Yes."
"Q. Do you know which questions those are?"
"A. Specifically on the implied consent law?"
"Q. Implied consent."
"A. He is advised based on my observations I placed him under arrest for driving while intoxicated and he is then told that, huh, you know, his license would be revoked for a year should he refuse to take the test. He is advised, huh, he is asked rather what time, rather he is asked if he would like to take the test and simply a yes or no answer."
"Q. What was his response to whether he would take the test?"
"A. He stated he would not take the test."
"Q. Okay. Did he tell you anything specifically?"
"A. He stated he didn't want to incriminate himself."
Defendant complains that evidence of his refusal to submit to a breathalyzer test should not have been admitted absent a showing that Defendant was informed that his refusal could be used against him in court. Defendant is correct that evidence of an arrestee's refusal to consent to a breathalyzer test is invalid under section 577.041.1 unless the officer properly advises the ar
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