Cox v. Director of Revenue3/4/2003
Opinion Vote: REVERSED AND REMANDED.
Limbaugh, C.J., Stith and Price, JJ., concur.
White, J., dissents in separate opinion filed; Wolff and Teitelman, JJ., concur in opinion of White, J. Wolff, J., dissents in separate opinion filed.
Opinion:
The circuit court ruled that the Director of Revenue improperly suspended the driving privileges of Steven R. Cox. The Director appeals. After opinion by the Court of Appeals, this Court granted transfer. Mo. Const. art. V, sect. 10. Reversed and remanded.
On Saturday, August 15, 1998, at 10:20 p.m., a police officer discovered Cox sleeping or unconscious, sitting in the driver's seat behind the wheel of a vehicle, in the parking lot of a gas station. Cox was the only person in or around the vehicle. The keys were in the ignition, and the motor was running. Seeing the shift lever in "park," the officer knocked on the window.
Awaking, Cox lowered the window. He had a strong odor of an intoxicating beverage on his breath. His eyes were very bloodshot and watery, and he appeared disoriented. The officer noticed a glass of brown liquid between his legs. At the officer's request, Cox turned off the ignition, exited the vehicle, and tried but failed sobriety tests. The officer arrested him for driving while intoxicated. After Miranda warnings, Cox answered "Yes" to the form question, "Were you operating the vehicle?". A subsequent breath test revealed a blood alcohol content of .18 of one percent.
The Director suspended Cox's driving privileges pursuant to section 302.505, RSMo Supp. 1997. Cox requested a trial de novo in circuit court. The parties stipulated to admission of the Director's records -- including the police reports -- subject to Cox's objection that they did not show probable cause for the arrest. At the circuit court, Cox argued that the officer did not observe him "operating" or "driving" the vehicle.
Under section 302.505, the Director shall suspend a driver's license if the arresting officer had probable cause to believe the person was driving a vehicle with a blood alcohol concentration of at least ten hundredths (.10) of one percent. See Riche v. Director of Revenue, 987 S.W.2d 331, 336 (Mo. banc 1999).
The term "driving" in section 302.505 is defined in section 577.001.1. Dalton v. McNeill, 713 S.W.2d 26, 28-29 (Mo. App. 1986). The meaning of driving is "physically driving or operating a motor vehicle." Section 577.001.1.
Until 1996, the statutory definition was "physically driving or operating or being in actual physical control of a motor vehicle." Section 577.001.1 RSMo 1994. In 1996, the General Assembly removed the phrase "or being in actual physical control of." 1996 Mo. Laws 593, 617. When the legislature amends a statute, that amendment is presumed to change the existing law. Hagan v. Director of Revenue, 968 S.W.2d 704, 706 (Mo. banc 1998). By removing "actual physical control" from the statute, the legislature narrowed its scope. A person is not subject to section 302.505 by simply being in actual physical control of a vehicle while intoxicated. See Weiland v. Director of Revenue, 32 S.W.3d 628, 631 (Mo. App. banc 2000); Baptist v. Lohman, 971 S.W.2d 366, 368 (Mo. App. 1998). The legislature meant to negate the effect of this Court's holding that "actual physical control" occurs when:
even though the machine merely stands motionless, . . .a person keeps the vehicle in restraint or in a position to regulate its movements. State v. O'Toole, 673 S.W.2d 25, 27 (Mo. banc 1984), adopting the definition from Kansas City v. Troutner, 544 S.W.2d 295, 300 (Mo. App. 1976).
The legislature's re-e
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