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Gonzalez v. Director of Revenue6/18/2003
Opinion Vote: REVERSED AND REMANDED.
Parrish, J., and Shrum, J., concur.
Opinion:
Missouri's Director of Revenue ("Director") appeals the judgment of the trial court reinstating the driving privileges of Antonio Javier Gonzalez ("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 Respondent's license had been revoked pursuant to section 577.041 for his alleged refusal to submit to a chemical test to determine his blood alcohol concentration.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, unsupported by substantial evidence, and an erroneous application of the law. See Rule 84.13(d). We reverse the trial court's judgment of reinstatement.
On the evening of December 8, 2001, Missouri State Highway Patrol Trooper Jason Pace ("Pace") stopped Respondent after Respondent failed to use his signal when turning and crossed the centerline twice. When Pace spoke with Respondent, he noted "a moderate odor of intoxicants coming from and about his person." Pace and Respondent "carried on normal conversation" in which Respondent did not ask Pace to repeat himself or otherwise indicate he did not understand Pace. Pace arrested Respondent for driving while intoxicated and took Respondent to the Greene County Jail.
While at the jail, Pace read the Implied Consent Warning to Respondent. As Respondent "was beginning to take the [breathalyzer] test he began to state he did not understand." Pace called Missouri State Highway Patrol Trooper Joe Boix ("Boix") and requested that Boix give the Implied Consent Warning to Respondent in Spanish. After Respondent spoke to Boix, Respondent told Pace that he would take the breath test and "began to blow," but he stopped and asked to speak with an attorney. Pace gave Respondent twenty minutes and access to a telephone to contact an attorney, but Respondent made no phone calls during the twenty-minute period. At the end of the time, Pace reread the Implied Consent Warning and asked Respondent if he understood the warning and would take a test; Respondent replied that he would not.
Respondent's driver's license was revoked pursuant to section 577.041, and Respondent filed a petition for review in the trial court. The trial court set aside the revocation and reinstated Respondent's driver's license. This appeal follows.
This court will affirm a trial court's reinstatement of driving privileges that have been revoked for refusing to consent to a chemical test unless it is unsupported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Sutton v. Director of Revenue , 20 S.W.3d 918, 920-21 (Mo.App. S.D. 2000). The issues in a post-revocation hearing are limited to (1) whether the person was arrested or stopped; (2) whether the officer had reasonable grounds to believe the person was operating a motor vehicle while in an intoxicated or drugged condition; and (3) whether the person refused to submit to the test. Hinnah v. Director of Revenue , 77 S.W.3d 616, 620 (Mo. banc 2002). Once these three questions have been answered, the inquiry ends. Id. The director has the burden of proof at the hearing. Id. If the trial court finds any issue not to be in the affirmative, it shall order the director to reinstate the license. Id. See also section 577.041.5.
The trial court concluded that "without the testimony of Trooper Boix, the court cannot find that [Respondent] understood Missouri's Implied Consent Warning." To establish a prima facia case, Director must show only that the person was arrested or stopped, the officer had reasonable grounds to believe the person was operating a motor vehicle while in an intoxicated or drugged condition, and the person
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