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Bucher v. Director of Revenue1/28/2003
Opinion Vote: REVERSED AND REMANDED.
Russell, P.J., and Shaw, J., concur.
Opinion: The Director of Revenue, State of Missouri ("Director") appeals the judgment of the circuit court reinstating the driving privileges of Scott R. Bucher ("Bucher"). The circuit court found that probable cause did not exist to warrant the original stop of Bucher, nor did probable cause exist to believe that Bucher was intoxicated. Director appealed the judgment asserting that the trial court erred in reinstating Bucher's driving privileges because probable cause existed to believe Bucher was intoxicated. We reverse and remand.
On July 17, 2001, Officers Rodney Edwards ("Edwards") and Jason Jurgens ("Jurgens") of the Cape Girardeau Police Department observed a car stopped on the shoulder of the road. The car pulled forward into a yield lane and swerved into the driving lane. When the car made its lane change, it almost struck the concrete median dividing the yield lane from the driving lane. Edwards and Jurgens stopped the car and spoke with the driver, Bucher. Edwards testified that he smelled an odor of an intoxicating beverage coming from Bucher's mouth or breath, and he noticed that Bucher's eyes were bloodshot. Edwards asked Bucher if he had been drinking that night, and Bucher replied that he had consumed seven beers. Officer Edwards asked Bucher to perform field sobriety tests. Bucher refused. Bucher was arrested and refused a breath test after his arrest.
Director revoked Bucher's license for his refusal to submit to a breath test. Subsequently, Bucher filed a petition for review in the circuit court. The matter was heard and the court entered a judgment and order reinstating Bucher's driving privileges, finding that, "the original stop was not made with probable cause and that [Bucher's] arrest was not made with probable cause to believe that [Bucher] was intoxicated." The present appeal followed.
We will affirm the judgment of the trial court unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Marsey v. Director of Revenue, 19 S.W.3d 176 (Mo. App. 2000).
In their sole point on appeal, Director asserts that the trial court erred in reinstating Bucher's driving privileges because the judgment was against the weight of the evidence and not supported by substantial evidence. Director argues that probable cause did exist to believe that Bucher was intoxicated, and Bucher presented no evidence to the contrary.
Section 577.041 RSMo (Supp. 2001) provides that a person who refuses to take a breath test shall have their license revoked. Pursuant to section 577.041.4, that person may request a hearing before a court in the county in which the stop or arrest occurred. At such a hearing, the court shall determine only: 1) whether the person was arrested; 2) whether the arresting officer had reasonable grounds to believe that the person driving the vehicle was intoxicated; and 3) whether the person refused to submit to the test. Section 577.041.5 states that " f the court determines any issue not to be in the affirmative, the court shall order the director to reinstate the license or permit to drive."
In the present case, there is no dispute that Bucher was arrested. Nor is there any dispute that he refused both the field sobriety test and the breath test. However, at issue in the present appeal is the finding of the court that probable cause to believe Bucher was intoxicated did not exist.
"Reasonable grounds" as discussed in section 577.041.4, is considered virtually synonymous with probable cause. Hawkins v. Director of Reven
Page 1 2 3 Missouri DUI Attorneys
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