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Tolliver v. Director of Revenue1/22/2003
Opinion Vote: REVERSED AND REMANDED WITH DIRECTIONS.
Rahmeyer, C.J., and Parrish, J., concur.
Opinion:
Pursuant to section 577.041, RSMo 2000, the Director of Revenue ("Director") revoked the driving privileges of Chester James Tolliver ("Respondent") based on Respondent's refusal to submit to a chemical test upon his arrest for driving while intoxicated.
Respondent petitioned the Circuit Court of Taney County for review. In his petition for review, Respondent contended that: (1) he was not properly under arrest; (2) there was no probable cause for his arrest; (3) the arresting officer did not have reasonable grounds to believe Respondent was driving while intoxicated; (4) Respondent's blood alcohol content was less than .10% at the time of operating the motor vehicle; (5) Respondent was not properly instructed as to the consequences of refusal; and (6) he "did not knowingly refuse to submit to a chemical test of his blood alcohol content."
After an evidentiary hearing, the circuit court reinstated Respondent's driving privileges upon its finding that "no probable cause existed for the arrest of the [respondent] at the time the arrest was made." Director appeals, presenting one point relied on:
The trial court erred in reinstating the driving privileges of Tolliver, because its judgment is against the weight of the evidence and is unsupported by substantial evidence in that the information the officers received when dispatched to the scene, in addition to their personal observations of Mr. Tolliver, provided probable cause to arrest Mr. Tolliver for driving while intoxicated.
At trial, Director offered into evidence a certified copy of its records, including the Hollister Police Department's Incident Report containing narratives from Officers Eaton and Schmidt. Neither officer was called to testify.
Officer Eaton, who was the arresting officer, filed the following narrative:
On the above date [12/16/01] and time [23:30] while on patrol, I was dispatched to Hidden Valley #6 reference an assault. Upon arrival I made contact with the victim Wayne Watson. He advised that he had been beat up by Chester James Tolliver. He also stated that he was drunk. Officer Schmidt arrived on scene at that time and took over the scene to get statements. I then went to Tollivers house with Taney County deputy #131 and #133. Upon arrival I made contact with Mr. Tolliver. He was standing on his back porch. Mr. Tolliver had a drink in his hand that he had not taken a drink out of yet. I asked him what had happened at Hidden Valley. He stated that he did not know what I was talking about. He then tried to take a drink. Deputy Kempher told him not to. Mr. Tolliver got very angry and started to yell at us. He was asking if we had a warrant. I told him that we did not need one. I then asked him again if anything happened at Hidden Valley. Mr. Tolliver said it was his vehicle he damaged and that we could not do anything about it. He also stated that he would say he had been home about thirty minuets prior to us getting there and that he had several drinks and that we could not prove anything else. I then asked him if he would do some standard field sobriety tests. Mr. Tolliver said "Fuck You[.] You cannot prove I was driving." I then placed him under arrest for driving while intoxicated and leave the scene of an accident and assault. I transported him to Branson Police Department for B.A.C. Upon arrival I read him the implied consent law. Mr. Tolliver refused the test. I then read him his Miranda rights. I asked him if he understood. Mr. Tolliver again said "Fuck You." I then finished booking him and took him to Ta
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