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Eskew v. Director of Revenue4/25/2000
Appeal From: Circuit Court of St. Louis County, Hon. Robert S. Cohen
Opinion Vote: REVERSED AND REMANDED. Gaertner, P.J. and J. Dowd, J., concur.
Opinion:
The Director of Revenue (Director) appeals from the judgment of the Circuit Court of St. Louis County setting aside the revocation of Carolyn Eskew's driving privileges under Section 577.041 RSMo 1994 (all further references herein shall be to RSMo 1994 unless otherwise indicated) for refusing a chemical test.
On appeal, Director contends that the trial court erred in setting aside the revocation of Eskew's driving privilege under Section 577.041 because the director proved a prima facie case showing that: (1) Eskew was arrested; (2) the arresting officer had reasonable grounds to believe Eskew was driving while intoxicated; and (3) Eskew refused to submit to a breathalyzer test. We reverse and remand.
In review of judge-tried cases, we will affirm the trial court's judgment if it is supported by substantial evidence, is not against the weight of the evidence and does not erroneously declare or apply the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.banc 1976).
The record on appeal consists primarily of the Alcohol Influence Report and the Investigative Report, both written by Officer Andert of the Police Department of the City of Kirkwood. The Investigative report reveals that on March 20, 1997, at about 11:41 p.m., Officer Andert received a radio call to respond to a traffic accident. Officer Tabers arrived at the accident scene while Officer Andert was en route and advised over the radio that the accident involved an intoxicated driver.
When Officer Andert arrived at the scene, he observed that "the entire intersection of the northbound lanes and the exit ramp was blocked by wrecked vehicles." He also noted that "Officer Tabers had already placed a female subject in handcuffs and had her seated in the rear of Officer Tabers' vehicle." Later at the police station, after producing identification the subject was identified as Eskew. Officer Andert noted that "when Officer Tabers first arrived at the scene, Ms. Eskew was still seated in her vehicle with the keys in the ignition and the motor running. When Officer Tabers approached her, she said that she did not know why these people were parked in front of her and asked why they weren't moving.
On speaking with other drivers involved in the accident, Officer Andert noted that the "intoxicated subject" had been traveling westbound exiting Highway 44 at S. Kirkwood Road and had apparently violated the red traffic signal, drove into the intersection and collided with two vehicles. She then apparently attempted to back up and leave the scene, but backed up into a pickup truck.
Thereafter, Officer Andert made contact with Eskew, observed a heavy odor of alcoholic beverages on her breath and noted that her eyes were watery and her pupils were dilated. After Officer Andert removed her from Officer Tabers' car to place her in his own car, he noticed that she was walking unsteadily and wobbling. She was transported to the police station, where she was advised by Officer Andert that she was under arrest for Driving While Intoxicated.
Eskew was asked to complete sobriety tests, including the alphabet test, the walk-and-turn test and one leg stand test, which she refused. She was then advised of her rights under Missouri's Implied Consent Law as well as her Miranda Rights, which she indicated that she understood. She was asked to take a breathalyzer test and she refused.
Officer Andert completed the Alcohol Influence Report and asked Eskew to respond to the questions, which sh
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