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Gregory v. Director of Revenue10/5/2005
Opinion Vote: REVERSED.
Prewitt, P.J., Parrish, J., concur.
Opinion:
The Director of Revenue ("Director") appeals the reinstatement of driving privileges to David Paul Gregory after they had been suspended by Director pursuant to section 302.505.
Director brings one point on appeal; she claims that Gregory presented no evidence to contradict or otherwise rebut the prima facie case established by Director based on Gregory's strong odor of alcohol, his glassy and bloodshot eyes, his admission to an officer that he had drunk "quite a few beers," his statement to the EMT that he had drunk about ten beers, his admission to driving a vehicle after drinking, and his blood alcohol content (BAC) result of .126 percent. Gregory did not testify at the trial, nor did he file a brief in this court. The only evidence at trial was the officer's testimony and the admission of Director's Exhibit A, which included Department of Revenue records and the narrative of the arresting officer.
In order for Director to revoke or suspend driving privileges for an alcohol-related offense, Director must prove by a preponderance of the evidence that (1) the person was arrested upon probable cause to believe he was committing an alcohol related driving offense and (2) that the person driving had a BAC of .08 percent by weight. Section 302.505.1; Middlemas v. Director of Revenue, State of Missouri, 159 S.W.3d 515, 517 (Mo. App. S.D. 2005). The trial court found that Director failed to meet the required burden of proof to suspend Gregory's driving privileges because Gregory was not arrested for driving while intoxicated (DWI) and the officer, by his own testimony, acknowledged that he did not have probable cause to arrest him for driving while intoxicated. Although the trial court did not make a specific finding as to Gregory's BAC, Director's Exhibit A, indicating that Gregory's BAC was .126 percent, was admitted without objection. As noted, Gregory presented no evidence to raise a genuine issue of fact as to the validity of the BAC test results. Likewise, there is no issue as to whether Gregory was arrested, therefore, at issue then is whether Gregory was arrested upon probable cause to believe he was committing an alcohol-related driving offense.
The judgment of the trial court will be upheld unless it is not supported by substantial evidence, unless it is against the weight of the evidence, or unless it erroneously declares or applies the law. Hinnah v. Director of Revenue, 77 S.W.3d 616, 620 (Mo. banc 2002). Our standard of review does not permit us to disregard uncontroverted evidence that supports Director's contention that all the elements were proved. Myers v. Director of Revenue,9 S.W.3d 25, 28 (Mo. App. E.D. 1999); Hopkins-Barken v. Director of Revenue,55 S.W.3d 882, 885 (Mo. App. E.D. 2001). In other words, we need not defer to the trial court's findings 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. E.D. 2000). Furthermore, it is important to note that once Director makes a prima facie case, the burden of production shifts to the driver even though Director retains the burden of proof throughout the proceedings. Verdoorn v. Director of Revenue, 119 S.W.3d 543, 546 (Mo. banc 2003).
"Probable cause exists when the facts and circumstances warrant a person of reasonable caution to believe that an offense has been or is being committed, based on the circumstances as they appear to a prudent, cautious and trained police officer." Walker v. Director of Revenue,137 S.W.3d 444, 446 (Mo. banc 2004). A cursory look
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