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Storck v. Director of Revenue10/30/2001
ad left him and he had been trying to locate her.
Officer left the question of when driver last slept blank on the alcohol influence report. Driver testified he was emotionally distraught but had not been drinking at the time of the incident.
Officer administered a breath test that registered zero percent blood alcohol content. According to driver, officer administered a second breath test that again registered zero percent blood alcohol content. Driver testified he took the test "two or three times." There was no indication driver's blood alcohol content ever registered more than zero percent.
Driver stated officer never informed him of the implied consent law prior to administering the breath test. However, officer's report states that he read the implied consent law to driver prior to administering the breath test.
At this point, officer requested driver submit to a blood test. Driver testified that officer "thought [driver] was on something and [officer] wanted to take [driver] to the hospital [to draw blood]." Driver stated he became perturbed because the reason officer had him perform the breath tests was because officer said he smelled alcohol on his breath. Driver stated he would agree to submit to a urine test, but would not submit to a blood test. According to driver, he reiterated to officer the circumstances regarding his sleep deprivation and that he was deathly afraid of needles. Driver testified that after he refused to give blood, officer read him the implied consent law.
Upon driver's refusal to submit to the blood test, driver was issued two traffic tickets for following too close and for operating a motor vehicle in an intoxicated condition.
The trial court found that officer did not have probable cause to arrest driver for driving while intoxicated and that driver did not refuse to submit to a chemical test of his breath but did refuse to submit to a chemical test of his blood. The trial court ordered the revocation of driver's driving privileges to be rescinded. Director appeals.
On review, the trial court's judgment will be affirmed 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. Glastetter v. Director of Revenue, 37 S.W.3d 405, 407 (Mo.App.E.D. 2001). This court views the evidence in the light most favorable to the trial court's judgment and we deem all facts to have been found in accordance with the result reached by the trial court. Duffy v Director of Revenue, 966 S.W.2d 372, 379 (Mo.App.W.D. 1998). A trial court is afforded wide discretion even if there is evidence that would support a different result. Id. "In a driver's license revocation case, a trial court has the prerogative when weighing witness credibility, to accept or reject all, part, or none of the testimony of any witness." Id. (quoting Hawk v. Director of Revenue, 943 S.W.2d 18, 20 (Mo.App.S.D. 1997)).
Director's sole point on appeal contends the trial court erred in reinstating driver's driving privileges because the judgment was against the weight of the evidence, unsupported by substantial evidence, and misapplied the law. Director argues officer had ample probable cause to arrest driver for driving while intoxicated and driver refused to submit to a blood test for drugs.
In a refusal case, the trial court shall determine whether the driver was arrested; whether the officer had reasonable grounds to believe that the driver was driving a motor vehicle while in an intoxicated condition; and whether the driver refused to submit to the test. Pendergrass v. Director of Revenue, 4 S.W.3d 599, 601 (Mo.App.E.D. 1999). D
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