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Gibson v. Director of Department of Revenue4/29/2003
Opinion Vote: REVERSED AND REMANDED.
Holliger, PJ, and Smart, Jr., J., concur.
Opinion:
The director of the Department of Revenue appeals the circuit court's judgment ordering her to remove from Stephen J. Gibson's driving record a one year revocation of his driving license for driving while intoxicated for refusing to take a chemical breath test. The circuit court found that, because the implied consent warning on the alcohol influence report was illegible, the evidence was insufficient to establish that the police officer gave Gibson the implied consent warning. We reverse the circuit court's judgment.
On February 16, 2002, Cass County sheriff's deputy Robert Hendricks saw a car parked in the median of Mo. 7. The car's engine was running and the transmission was in "drive." Gibson appeared to be asleep in the driver's seat behind the steering wheel. Hendricks knocked several times on the car's window, but Gibson did not respond. Hendricks opened the driver's door and detected a very strong odor of intoxicating beverages. Hendricks put the transmission in "park" and woke Gibson by shouting at and shaking him. Aroused, Gibson said, "Ok, ok, alright." Gibson then pushed the turn signal up and down while pressing three times on the accelerator. Hendricks turned off the vehicle's engine and removed the keys. He told Gibson to get out of the vehicle. Gibson responded, " Alright, alright, ok." He pulled on the turn signal lever and stepped on the accelerator again. Hendricks removed Gibson from the vehicle, but Gibson was not able to walk without Hendricks' assistance. Hendricks handcuffed Gibson's wrists, put him in his patrol car, and took him to the sheriff's office. When Hendricks checked law enforcement records, he found that Gibson's driving privilege was under a "10 year denial" until October 7, 2006. At the sheriff 's office, Hendricks informed Gibson of his basic constitutional rights and read the "Implied Consent portion of the Alcohol Influence Report" ; to him. Gibson refused to submit to a breath test.
To revoke a driving license on the ground that a driver has refused to submit to a chemical test, the director must establish that: (1) a qualified law enforcement officer arrested or stopped the driver, (2) with reasonable grounds to believe that the driver was driving while intoxicated, and (3) the driver refused to submit to a chemical test. Section 577.041.4, RSMo Supp. 2001; Zimmerman v. Director of Revenue , 988 S.W.2d 583, 585 (Mo. App. 1999). If the director fails to establish one of these requirements, the driver's driving privileges must be reinstated. Section 577.041.5; Zimmerman, 988 S.W.2d at 585.
The evidence established that a qualified law enforcement officer arrested Gibson with reasonable grounds to believe that he was driving while intoxicated. The issue in this case is whether the evidence established the third element--whether Gibson refused to submit to the test. When an officer requests a driver to submit to a test, the requesting officer shall include "the reasons of the officer for requesting the person to submit to a test and also shall inform the person that evidence of refusal to take the test may be used against such person and that the person's license shall be immediately revoked upon refusal to take the test." Section 577.041.1. The director must establish that the arresting officer properly informed the driver to prove that the driver's refusal to take the blood alcohol test warrants revocation of his license. Kidd v. Wilson , 50 S.W.3d 858, 863 (Mo. App. 2001).
In proving her case, the director introduced Department of Revenue's records, which contained Hendricks' report and an alcoho
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