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Sweatt v. Director of Revenue3/19/2003
Opinion Vote: REVERSED AND REMANDED WITH DIRECTIONS.
Rahmeyer, C.J., Garrison and Barney, JJ.
Opinion:
This appeal involves the revocation of Richard Sweatt's (Respondent) driving privileges for refusing a chemical test for intoxication under section 577.041. After a hearing, the trial judge ordered reinstatement of Respondent's driving privileges. The Director of Revenue (Director) appeals. Director argues that the trial court erred in reinstating Respondent's driving privileges because he refused chemical testing and the arresting officer complied with applicable statutes. We agree and reverse the judgment.
On October 13, 2001, at approximately 1:13 a.m., Officer Arthur Ross of the Camdenton Police Department observed a vehicle driven by Respondent exceeding the speed limit. Officer Ross activated his emergency lights and pulled Respondent's vehicle over. Officer Ross smelled intoxicants on Respondent's breath and observed that his eyelids were droopy. Respondent initially denied that he had been drinking but then admitted to having a couple of beers several hours ago.
Officer Ross administered several field sobriety tests to Respondent. He asked Respondent to attempt the one-leg stand. Respondent swayed while balancing, used arms for balance, hopped on one foot, and put his foot down. Officer Ross requested Respondent to walk and turn following his directions. Respondent could not keep his balance while listening to the instructions. He attempted the walk and turn before the instructions were finished. While attempting to perform the walk and turn, Respondent failed to touch heel-to-toe on many of the steps. Officer Ross also administered the horizontal gaze nystagmus. He observed that there was no smooth pursuit in either eye, and there was distinct nystagmus at maximum deviation in both eyes. Respondent complied with Officer Ross's request to give a sample of his breath using a portable breathalyzer test. The test results showed a blood alcohol content of .175 %. Following the field sobriety tests, Officer Ross arrested Respondent for driving while intoxicated and transported him to the Camden County Sheriff's Department.
At the Camden County Sheriff's Department, Officer Ross read Respondent the implied consent form. He agreed to submit to a breathalyzer test but was unable to finish the test. Respondent testified at the hearing that after he was unable to finish the breathalyzer test Officer Ross asked him if he wanted a blood test. Respondent replied to Officer Ross's request: "Well, not if I don't have to, because I don't like needles better than anyone else." Respondent volunteered to try the breathalyzer test for a second time and, for the second time, he was unable to finish. Officer Ross recorded this as a refusal. He also recorded Respondent as having refused a blood test. At the hearing, Respondent testified that he suffered from high blood pressure, shortness of breath, and anxiety attacks, which prevented him from being able to perform the breathalyzer test.
"Appellate review of judgments relating to revocation of driving privileges for failure to take a chemical test is governed by Murphy v. Carron, 536 S.W.2d 30 (Mo.banc 1976)." Zimmerman v. Director of Revenue , 72 S.W.3d 634, 636 (Mo.App. 2002). The judgment must be affirmed 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. Baldridge v. Director of Revenue , 82 S.W.3d 212, 219 (Mo.App. 2002). "This court views the evidence, and all reasonable inferences therefrom, in the light most favorable to the judgment and disregards all contrary evidence and inferences."
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