 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Dotzauer v. Director of Revenue2/24/2004
Opinion Vote: REVERSED AND REMANDED.
Shaw, P.J. and Cohen, J., concur
Opinion:
The Missouri Director of Revenue ("Director") appeals the judgment overturning Director's revocation of the driving privileges of Donald G. Dotzauer ("Driver") for driving while intoxicated. We reverse and remand.
Shortly after midnight on May 13, 2002, Officer Michael Connon, a patrolman for the City of Eureka, was dispatched to investigate a motor vehicle accident involving a sport utility vehicle (SUV) in a ditch. After locating the vehicle, Officer Connon determined that the SUV had collided with a pickup truck in an accident on the highway. Officer approached Driver, who was standing near the SUV. Driver told the Officer that he owned the SUV and had been driving it when it collided with the pickup.
Officer Connon observed that Driver smelled of alcohol and his eyes were bloodshot, watery and staring. He slurred and mumbled when he spoke. Driver told Office Connon that he'd had too much to drink. When asked if he would consent to field sobriety tests, Driver said it didn't matter because he couldn't pass them. Officer Connon told him it was his decision and Driver said he wouldn't refuse.
Driver did poorly on the horizontal gaze-nystagmus, one leg stand and alphabet tests. Office Connon arrested Driver for driving while intoxicated and transported him to the police station. He advised Driver of his rights and read him the Missouri Implied Consent law. Driver said he would take the test. Officer Connon began to interview Driver. At 12:47 a.m., Driver asked to contact his attorney. He looked up the number and left a message on his attorney's answering machine. Officer Connon told Driver it was up to him if he wished to answer the interview questions and he could choose not to answer any of the questions or Officer Connon could read the questions and he could choose not to answer any he found objectionable. Driver told Officer Connon he wanted him to read the questions and Officer Connon took down his answers. Officer Connon administered the breath test at 1:08 a.m. The test showed that Driver had a blood alcohol content ("BAC") of .173%. Driver presented no evidence.
The trial court found that Officer Connon had probable cause to arrest Driver but Director failed to show a blood alcohol concentration of over .08%. Specifically, the court found "Police Officer failed to wait 20 minutes after request for an attorney by petitioner to give breath test." This appeal followed.
In driver's license revocation cases, we must affirm the decision of the trial court 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. Neeley v. Director of Revenue , 104 S.W.3d 797, 801 (Mo. App. 2003). However, deference to the trial court's findings is not required when the evidence is uncontroverted and the case is virtually one of admitting the facts or when the evidence is not in conflict. Marsey v. Director of Revenue , 19 S.W.3d 176, 177 (Mo. App. 2000). In a license revocation case, a trial court cannot disregard uncontroverted evidence that supports the fact that all elements of the Director's case were met. Sweatt v. Director of Revenue, 98 S.W.3d 926, 928 (Mo. App. 2003).
Director's sole point on appeal urges the trial court erred in restoring Driver's driving privileges because its ruling misapplies the law and is against the weight of the evidence in that (1) Driver never refused the test, so section 577.041 RSMo was inapplicable; (2) Driver was nonetheless given 20 minutes in which to attempt to contact an attorney and (3) Driver abandoned
Page 1 2 Missouri DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|