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Swanberg v. Director of Revenue1/14/2003
Opinion Vote: REVERSED AND REMANDED WITH DIRECTIONS.
Opinion:
Appellant, Director of Revenue ("Director") revoked the driver's license of Respondent, Ross S. Swanberg ("Driver"), for a period of one year for failing to submit to a chemical test following an arrest for driving while intoxicated. Section 577.041. Driver filed a petition for review in the Circuit Court of Taney County, and after a hearing, the court determined that "no probable cause existed for the arrest of [Driver] at the time the arrest was made . . .", and ordered the reinstatement of Driver's driving privileges.
The record shows that in the early morning hours of July 1, 2001, at approximately 3:30 a.m., Driver was traveling on Missouri Highway 76 in Taney County. As the Driver testified, at some point, while going "a little too fast," Driver attempted to round a curve in his lane of traffic but slid into an adjoining ditch. He was alone. After a failed attempt to remove his vehicle from the ditch, a truck came upon the scene and carried Driver to a nearby convenience store. Once inside, Driver inquired of the clerk on duty, Jason Bright, regarding calling a tow truck. At that time he had a long conversation with Mr. Bright but was unable to obtain a tow truck. Later, a friend of Driver's came by the convenience store and retrieved Driver and took him to another friend's home where Driver testified "we ended up drinking and carrying on for a couple of hours." Driver also testified that he then returned to the convenience store when a highway patrolman, Officer L. A. Windle, "pulled up." At trial Driver acknowledged being arrested at about 5:23 a.m.
According to the alcohol influence report received into evidence at trial, Officer Windle wrote that at "0434 hours, July 1, 2001, I was notified of an accident on Mo 76 near Snapps cemetery. I arrived at the scene at 0446 hours. The driver had left the scene. I located the driver at 'Primetime' on Mt. Branson at 0523 hours. He originally stated he was going around the curve in his lane and overcompensated. When I advised him he had went around the curve over the centerline he became angry." Upon further questioning Officer Windle observed that Driver "was very unsteady on his feet" and his "speech was slurred." Officer Windle then administered at least three field sobriety tests on Driver and noted in his report that Driver was "unable to satisfactorily complete the finger to nose test or one leg stand." He also indicated in his report that Driver "would not attempt the ABC's from K thru Z" and "had nystagmus present in both eyes." Driver was then placed under arrest at approximately 5:27 a.m., and thereafter was informed of his rights under the Implied Consent Law. Driver refused to submit to a chemical breath test, and in due course Director notified Driver of the revocation of his driving privileges for a period of one year.
In his sole point on appeal, Director maintains that the hearing court erred in reinstating Driver's driving privileges because the arresting officer had reasonable grounds to arrest Driver for driving while intoxicated. This was manifested by the officer having observed Driver unsuccessfully complete three field sobriety tests and by Driver's refusal to perform another field sobriety test; Driver's acknowledgment that he had been involved in a single-vehicle accident; his observations that Driver was unsteady on his feet and he slurred while speaking and became angry; and by virtue of the fact that Driver never informed the arresting officer of his alleged "post-crash drinking."
"This Court will affirm the trial court's judgment unless there is no substantial evidence to support it, unless the
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