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Kisselev v. Director of Revenue2/11/2003
Missouri's Director of Revenue ("Director") appeals the judgment of the trial court reinstating the driving privileges of Alexandre Kisselev ("Respondent"). Respondent's license had been revoked pursuant to section 577.041 for his alleged refusal to submit to a chemical test to determine his blood alcohol concentration. Director claims the judgment is against the weight of the evidence and is unsupported by substantial evidence. We affirm the trial court's judgment of reinstatement.
Respondent, who came to this country in 1997 or 1998, is not fluent in the English language. After Respondent was stopped and arrested for driving under the influence of alcohol by JasCo Metropolitan Police Department Officer Swain, he was transported to the Webb City Police Department. Officer Swain advised Respondent of his Miranda rights and Missouri's Implied Consent Law and requested that Respondent take a breathalyzer test. Respondent agreed. Officer Swain testified that he had some problems communicating with Respondent when he was trying to advise Respondent of his Miranda rights. Respondent would "ask - - act like he was asking questions, and I would have to stop him and then read the - - read it to him"; however, once Officer Swain finished reading Respondent his Miranda rights, Respondent indicated that he understood. Officer Swain testified that it was quite possible that "the language was some barrier" and that "part of the problem might have been the language" in administering the tests.
Sergeant Malone of the Webb City Police Department then spent five to seven minutes explaining the test to Respondent and instructed him on how to blow into the instrument. Sergeant Malone testified that he did not notice any difficulty in communicating with Respondent. Sergeant Malone attempted to administer the breathalyzer test to Respondent; however, he testified that Respondent did not blow hard and did not blow into the mouthpiece, " t appeared that he was blowing kind of around the mouthpiece of the instrument." He stated that he could hear Respondent blowing around the mouthpiece and "it looked like he was blowing lightly after instructed to blow strong, consistent breath, like you would a balloon -- like you'd be blowing up a balloon." The first attempt resulted in an invalid sample.
Sergeant Malone and Officer Swain explained the procedure to Respondent again and Officer Swain told Respondent "not to shake his head and not to stop until told to do so" while blowing into the instrument. Respondent did not indicate that he had any questions. Sergeant Malone testified that he then attempted to administer the test again; however this time Respondent "appeared to be trying to blow saliva and blow around it again." Sergeant Malone also observed that rather than keeping his hands at his sides as instructed, Respondent grabbed the instrument. The second sample was also invalid. Respondent was then transported to the JasCo Metropolitan Police Department.
While waiting for his son to arrive at the police department, Respondent told Officer Swain that he wanted to take another test, but his request was denied. Respondent's son testified that he arrived at the police department within an hour of Respondent's arrest and spoke to Officer Swain about the possibility that his father may not have understood the instructions clearly. He requested that Officer Swain give Respondent another test and offered to help his father with the instructions for an additional test; however, the officer indicated that no other tests would be administered. Officer Swain refused to allow Respondent to attempt a third test because it was his department's policy to allow only two tests.
Afte
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