 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Smither v. Director of Revenue6/30/2003
Opinion Vote: AFFIRMED.
Newton, P.J., and Ulrich, J., concur.
Opinion:
The Director of Revenue (Director) appeals the judgment of the Circuit Court of Platte County reinstating the driver's license of the respondent, Kenneth S. Smither, following a revocation review hearing conducted in accordance with sections 577.041.4, .5. The respondent's license had been revoked by the Director for a period of one year, pursuant to section 577.041.3 , for his refusal to submit to a chemical test of his blood-alcohol content (BAC), as authorized by section 577.020 , after being involved in a one-car accident in Platte County, Missouri.
In her sole point on appeal, the Director claims that the trial court erred in reinstating the respondent's driver's license based on its finding that the evidence was insufficient to make the requisite finding that the respondent had been arrested for suspicion of driving while intoxicated (DWI) because the court's finding was against the weight of the evidence and misapplied the law.
We affirm.
Facts
On the morning of December 23, 2001, Trooper Steve Salfrank of the Missouri State Highway Patrol was dispatched to a one-vehicle accident near the intersection of Interstate 29 and Highway 152 in Platte County, Missouri. Upon his arrival at the scene, Trooper Salfrank observed an overturned vehicle located on the shoulder of the interstate, which apparently had struck an embankment near the off-ramp to northbound I-29. Trooper Salfrank determined that the respondent, who was lying on the ground behind the overturned vehicle, was the driver. Trooper Salfrank stayed with the respondent until the paramedics arrived and placed him in an ambulance to be transported to the hospital. When Trooper Salfrank was speaking with the respondent, he noticed an odor of alcohol on his breath.
Although Trooper Salfrank did not immediately follow the ambulance to the hospital, he arrived at the hospital and made contact with the respondent a short time after the respondent arrived at the emergency room. At that time, upon questioning by the trooper, the respondent admitted that he had been drinking. The trooper then performed a horizontal gaze nystagmus (HGN) test, which resulted in findings consistent with intoxication. Based upon the respondent's admission of drinking and the results of the HGN test, the trooper determined that he was intoxicated and advised him that he was under arrest for DWI.
The trooper read the respondent his Miranda rights and the Missouri Implied Consent Law warning, including his right to contact an attorney. Trooper Salfrank then requested that the respondent submit to a BAC test. The respondent advised the trooper that he wanted to contact an attorney. Hospital personnel contacted the respondent's parents and informed them that the respondent wanted them to call an attorney on his behalf. Trooper Salfrank waited approximately forty minutes for an attorney to call the respondent before repeating his request for him to submit to a BAC test. At that point, the respondent refused to take the test or answer any more of the trooper's questions. Trooper Salfrank then issued the respondent a notice from the Director that his privilege to operate a motor vehicle would be revoked for a period of one year for a refusal, pursuant to section 577.041.3 . The trooper also issued the respondent a citation for DWI and for careless and imprudent driving.
On January 16, 2002, the respondent filed a petition for a revocation review hearing in the Circuit Court of Platte County alleging, inter alia , that he "was not lawfully or properly arrested." A revocation review heari
Page 1 2 3 4 5 6 Missouri DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|