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House v. Direct of Revenue8/19/1999
This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.
Appeal From: Circuit Court of Crawford County, Hon. J. Kent Howald
Opinion Vote: AFFIRMED. Parrish and Shrum, JJ., concur.
Opinion:
These consolidated appeals arise from the revocation of Louis Robert House's driver's license by the Director of Revenue ("Director") pursuant to section 302.505.1, RSMo Cum. Supp. 1997, which reads, in pertinent part:
"The department shall suspend or revoke the license of any person upon its determination that the person was arrested upon probable cause to believe such person was driving a motor vehicle while the alcohol concentration in the person's blood, breath, or urine was ten-hundredths of one percent or more by weight . . . ."
Following the revocation, House filed a two-count petition in the Circuit Court of Crawford County. Count I prayed for trial de novo per section 302.535.1, RSMo Cum. Supp. 1997. Count II prayed for "limited driving privileges."
The trial court, after trial de novo, ultimately entered judgment on Count I setting aside Director's revocation of House's license. On Count II, the trial court ruled: " he Court . . . finds in favor of [Director] and against [House]. The requested relief in Count II, is moot."
Director brings appeal 22585, attacking the judgment as to Count I only. House brings appeal 22699, attacking the judgment as to Count II only.
Appeal 22585
Resolution of this appeal requires a synopsis of the evidence at the trial de novo.
Trooper Mark D. Ward, Sr. of the Missouri State Highway Patrol testified he was on duty in a marked vehicle "a little before two [a.m.]," January 7, 1998. Ward recounted: "As I came to the stop sign at the 203 Exit of I-44 I observed a blue pickup turn from Route F onto Daniels Road into the wrong lane and park on the wrong side of the roadway."
Ward approached the pickup and saw it was occupied by a driver and a passenger. Ward identified House as the driver. Ward asked House "to step out of the vehicle"; Ward asked the passenger "to remain seated."
House complied with Ward's request, positioning himself where Ward's "headlights were shining." Ward observed House's eyes were "bloodshot and glassy in appearance." Additionally, Ward noticed House's balance "seemed to be uncertain" and House had "a distinct smell of an intoxicating beverage" about his person.
At Ward's request, House performed "a series of field sobriety tests." House's performance, coupled with his speech -- Ward described it as "slurred" -- convinced Ward that House was intoxicated. Consequently, Ward arrested House and took him to the "zone office." There, using a "Data Master," Ward administered a "breath analysis test" to House. The instrument recorded a reading of ".143 percent BAC."
On cross-examination, Ward related that after he arrested House, the passenger in the pickup got out and "wanted to know where Mr. House was going to go." Ward's testimony continued:
"Q. Did you ask [the passenger] if he had been driving the vehicle?
A. No, sir. But he volunteered the information that he had been driving earlier in the night, but wanted to talk on the telephone so they had switched drivers.
Q. Okay. He didn't say when he switched, did he?
A. No, sir."
House, testifying at the trial de novo, admitted he owned the pickup and was seated on the driver's side when Ward appeared. However, House avowed he did not drive the pickup to the site where Ward arrested him. House's
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