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Bacandreas v. Director of Revenue3/11/2003
Opinion Vote: AFFIRMED.
Sullivan and Norton, JJ, concur.
Opinion:
The Director of Revenue (Director) appeals from the judgment reinstating Thanos Bacandreas's driving privileges. We affirm.
Director notified Bacandreas that his driving privileges would be revoked for failing to take a chemical test of his blood. Bacandreas filed a petition for review in the circuit court. The court assigned the case to a traffic commissioner. The case was submitted on the certified records of the Department of Revenue including among other things the Alcohol Influence Report and Investigative Report with a narrative portion.
The following is derived from portions of the submitted certified records. On the evening of October 21, 2000, a police officer observed Bacandreas's vehicle traveling at a high rate of speed. When the vehicle turned, the officer heard the tires squealing and a loud bang. The officer believed the vehicle struck a lane divider. The officer then saw the vehicle tailgate another vehicle and drive by that vehicle on the shoulder. The officer stopped the vehicle and in the backseat saw a "six pack" container of beer with three bottles missing. The officer smelled alcohol on Bacandreas's breath and he admitted to drinking three beers. Bacandreas's eyes were bloodshot and glassy and his speech was slurred. The officer administered field sobriety tests some of which Bacandreas failed. Bacandreas took a portable breath test that indicated the presence of alcohol. The officer arrested Bacandreas for driving while intoxicated. When the officer asked Bacandreas whether he had smoked any marijuana, he said that about three days before he had taken three hits. The officer read the Implied Consent Law to Bacandreas and he agreed to take a breath test. The test indicated a blood alcohol content of .067. At 11:16 p.m., the officer read the Implied Consent Law to Bacandreas for a second time and asked him to submit to a blood test. At that time, Bacandreas told the officer his attorney's name and asked to speak to him. Bacandreas did not know his attorney's phone number. After attempts to locate the number using the phone book were unsuccessful, Bacandreas agreed to take the blood test. As the officer drove into the hospital entrance for the blood test, Bacandreas asked the officer why he was asking for the test. The officer told Bacandreas that the blood test was for drugs. Bacandreas stated he would not take the test until he spoke with his attorney. At Bacandreas's request, the officer called Bacandreas's sister. But she did not know the attorney's phone number and Bacandreas refused to ask his sister for any advise. According to the officer, "as result of Bacandreas ' refusal to answer any questions, and the fact that he stated he would not take the test until he ha spoken with his attorney, Bacandreas received a refusal to take a chemical test."
The commissioner found that the officer had probable cause to arrest Bacandreas for driving while intoxicated but that Bacandreas did not refuse to submit to a chemical test. The commissioner recommended that Bacandreas's driving privileges be reinstated. The circuit court adopted the commissioner's findings and recommendations as the judgment of the court. Director appeals from this judgment, raising one point.
We will affirm the trial court's judgment 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. Hinnah v. Director of Revenue , 77 S.W.3d 616, 620 (Mo. banc 2002). However, we are not required to defer to the trial court's judgment when "the evidence is uncontroverted or admitted so that th
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