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Long v. Director of Revenue11/27/2001
Appeal From: Circuit Court of Pettis County, Hon. Gary W. Fleming
Opinion Vote: VACATED AND REMANDED.
Smith, P.J., and Holliger, J., concur.
Opinion:
The Director of Revenue ("Director") appeals from the trial court's judgment in favor of James Long, Jr., permanently enjoining the Director from revoking Long's driving privileges under section 577.041 for refusing to submit to a chemical test. The Director contends that the trial court erred in entering its judgment because the evidence established that Long was arrested, the arresting officer had reasonable grounds to believe that Long was driving while intoxicated, and Long refused to submit to the test after he abandoned his attempts to contact an attorney.
We vacate and remand.
Facts
On May 15, 2000, James Long was arrested for driving while intoxicated. The Director notified Long that his driving privileges would be revoked due to his failure to take a chemical test. Long filed his application for review of the Director's decision in the trial court on May 23, 2000. The evidence adduced at the hearing was as follows.
Officer Daniel Keltner of the Sedalia Police Department testified that after arresting Long on suspicion of driving while intoxicated, he read Long the Implied Consent Law. Keltner testified that after he read Long the Implied Consent Law, Long asked for an attorney, and Keltner gave him an opportunity to call an attorney. Keltner told Long that he had twenty minutes to contact an attorney. Long immediately used his cellular phone to make two phone calls. Keltner testified that the first phone call lasted approximately five minutes and the second call lasted approximately one minute. Keltner testified that as soon as Long finished the second phone call, he asked Long if he would take the test, and Long said no. Keltner testified that it was his impression that following Long's second phone call, he believed Long had contacted his attorney. Long did not ask for more time to try to reach an attorney. Keltner testified that he "gave him 20 minutes to make an answer, and he made it before the 20 minutes were up." Following the phone calls, Keltner did not ask Long if he needed more time to contact an attorney.
At the close of the Director's evidence, Long moved for judgment in his favor on the basis that section 577.041 requires a twenty-minute waiting period after the arrestee asks for an attorney. The court denied Long's motion on the basis that the evidence to that point had demonstrated that Long was granted time to talk to an attorney and he did in fact talk to his attorney.
Long testified that he did not remember Keltner telling him he had twenty minutes to contact an attorney. He testified that the first phone call he made was to his employer , and the second phone call was an unsuccessful attempt to contact his attorney. Long testified that he did not attempt to make any more phone calls after the second call. Long testified that while he was trying to make his calls, Keltner told him to "hurry up," and that Keltner was verbally "pushing" him.
Following closing statements, the court stated as follows:
If the testimony as it finally came in were that Mr. Long had, in fact, talked to an attorney and then declined to take the test, despite the language of the statute, I think that the statute probably does not mean that you have to wait 20 minutes when the person has fully talked to his attorney.
But based on the record that's before us, there's a dispute as to whether that happened. The officer said that Mr. Long told him he had talked to Ken Dake, but Mr. Long says
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