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Storck v. Director of Revenue10/30/2001
Appeal From: Circuit Court of St. Louis County, Hon. Robert S. Cohen
Opinion Vote: AFFIRMED.
Teitelman, P.J., and Ahrens, J., concur.
Opinion:
Appellant, Director of Revenue, ("director"), appeals from the judgment of the Circuit Court of St. Louis County reinstating the driving privileges of respondent, Ronald H. Storck, ("driver"), after director revoked them pursuant to section 577.041, RSMo Cum.Supp.1999. We affirm.
On October 5, 1999 an officer of the St. Louis County Sheriff's Department signed an affidavit alleging that driver refused to take a chemical test and pursuant to section 577.041, driver received notice of the loss of his driving privileges. Driver's loss of driving privileges was to become effective on October 19, 1999, and was to last for a period of one year. Driver denies the allegation contained in the affidavit, which was forwarded to the director. The suspension of driver's driving privileges was stayed and the case was heard in St. Louis County Circuit Court on November 3, 2000.
At trial, driver was the only witness to testify. However, director offered into evidence Exhibit 1, which contained the original stay order filed in the case, a copy of the petition for review, driver's Missouri driving record, a copy of the fifteen-day driving permit issued to driver, and a copy of the alcohol influence report. The following evidence was adduced at trial.
On October 5, 1999, at 4:15 p.m., St. Louis County Police Officer Leonard Sanders ("officer") was dispatched to an automobile accident that occurred at Bennington Place and Fee Fee Road. Upon arrival, officer interviewed Gregory Cummins who stated his vehicle was struck from behind by a brown Honda Civic that belonged to driver. While investigating the accident, officer's report indicated driver was unsteady in his walk and his speech was slurred.
Officer asked driver if he had been drinking alcohol, to which driver denied. According to driver, officer told him that he smelled alcohol on driver's breath. However, officer did not indicate in his report that driver's breath smelled of alcohol. Officer asked driver to submit to several standardized field sobriety tests.
Officer's alcohol influence report denotes that driver failed the walk-and-turn test. Also, driver hopped and put his right foot down on the one-leg stand test. On the gaze nystagmus test, driver had no smooth movement with either eye, had distinct nystagmus at maximum deviation with both eyes, and had onset before forty-five degrees with some white showing.
Finally, driver stopped for approximately five seconds at the letter "L" when he was asked to recite the alphabet. According to driver these tests were performed "right there in the middle of the intersection" of a thoroughfare noted for heavy traffic. Driver believed, pursuant to the instructions he was given, that he performed the walk-and-turn test satisfactorily. Driver also believed he adequately performed the gaze nystagmus test. Driver did not recall being administered the alphabet test.
Officer's alcohol influence report further noted driver's eyes were glassy and staring and his clothing was mussed and soiled by dirt. Based on officer's observations and driver's performance, officer believed driver was intoxicated. Officer decided to transport driver to St. Louis County Intake in order to perform a chemical breath test.
Driver testified that he explained to officer that he was heading home from his work as a cement truck driver. Driver stated he had been without sleep for two days due to a marital dispute with his wife. Driver further explained his wife h
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