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Lumsden v. Director of Revenue5/18/2004
Opinion Vote: REVERSED AND REMANDED. Gaertner, Sr., P.J., Dowd, Jr., J. and Rhodes Russell, J.
Opinion:
The Director of Revenue ("Director") appeals from the judgment of the Circuit Court of St. Louis County reinstating the driving privileges of Bonnie S. Lumsden ("Driver"). We reverse and remand.
On September 5, 2002, Officer David Dwyer ("Officer") of the Berkeley police department responded to a parking lot after receiving a call about an intoxicated driver. When Officer arrived, he observed Driver sitting in the driver's seat and parked on the curb. Officer stated in the alcohol influence report that Driver had a strong odor of alcohol on her breath, her pupils were dilated, and her eyes were watery, bloodshot, and glassy. He also noted that her speech was slurred and incoherent. Officer asked Driver to perform "the field sobriety test." Driver consented, but "failed the gaze nystagmus test and could not perform any others." Driver was then arrested for driving while intoxicated and transported to the Berkeley police station where she was read her Miranda rights. The alcohol influence report indicates that Driver said she was operating the vehicle and was on her way to a friend's house. Driver refused to take a chemical test of her breath. Driver submitted no evidence in this case.
The Department of Revenue revoked Driver's driving privileges. Driver then filed a petition for review of the revocation. The trial court, adopting the findings of the Commissioner at the post-revocation hearing, found there was no evidence of the petitioner operating a motor vehicle, removed the administrative revocation from Driver's driving record, and reinstated her driving privileges. Director appeals from this judgment.
In a court-tried case, we affirm the judgment 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." Rain v. Director of Revenue, 46 S.W.3d 584, 587 (Mo.App.E.D. 2001). In reviewing, we must accept as true the evidence and inferences favorable to the judgment and disregard all contrary evidence and inferences. Reece v. Director of Revenue, State of Mo., 61 S.W.3d 288, 291 (Mo.App.E.D. 2001). However, when the evidence is uncontroverted and the case is virtually one of admitting the facts or when the evidence is not in conflict, we are not obligated to defer to the trial court's findings. Rain, 46 S.W.3d at 587. The trial court is not free to disregard uncontradicted evidence supporting Director's contentions in license revocation cases. McCarthy v. Director of Revenue, 120 S.W.3d 760, 762 (Mo.App.E.D. 2003). Director retains the burden of proof to support the revocation of a person's license for refusal to submit to a chemical test. Litzsinger v. Director of Revenue, 115 S.W.3d 866, 868 (Mo.App.E.D. 2003).
In her first point on appeal, Director argues the trial court erred in setting aside Director's revocation of Driver's driving privileges because Director made a prima facie case by establishing Driver refused to submit to a breath test and that Officer had reasonable grounds to believe Driver was driving while intoxicated, and Driver submitted no evidence to rebut this prima facie case.
A person under arrest may refuse to submit to a chemical test of her blood alcohol level. Id. If the arresting officer has reasonable grounds to believe a person was driving while intoxicated, the officer is to make a sworn report to Director that such person withheld consent to the test. Id. Director will then revoke the license of the person for one year. Id. A post-revocation hearing is available in the circuit court, but it
Page 1 2 Missouri DUI Attorneys
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