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Terry v. Director of Revenue4/4/2000
Appeal From: Circuit Court of Henry County, Hon. Wayne P. Strothmann
Opinion Vote: REVERSED AND CAUSE REMANDED FOR REINSTATEMENT OF THE DIRECTOR'S REVOCATION. Ellis, P.J., Spinden and Newton, JJ., concur.
Opinion:
On October 11, 1998, Missouri Highway Patrol Officer Hugh Fowler stopped a vehicle driven by Shawn Terry for failure to signal a turn and speeding. Fowler brought Terry back to sit in the patrol car, at which time he noticed the smell of intoxicants (beer) on Terry's person, that his eyes were bloodshot and glassy, his speech was slurred, and he swayed when he walked to the car. Officer Fowler asked Terry how much he had had to drink, and Terry responded, "A couple." Fowler conducted a gaze nystagmus test, on which Terry scored 6 of 6 points. Fowler then requested Terry take a portable breathalyzer test, which Terry refused, along with any further field sobriety tests. Fowler placed Terry under arrest and transported him to the Henry County jail. Upon arrival at the jail, Terry was read the Miranda warnings and the Implied Consent Law, section 577.020. He subsequently refused to answer further questions and refused any tests. Terry was given notice of administrative revocation of his driving privileges effective October 26, 1998, and required to surrender his driver's license.
On October 16, 1998, Terry filed a petition for review of the revocation of his driving privileges in the Circuit Court of Henry County. A hearing was held on February 9, 1999, wherein the case was submitted on the Department of Revenue's certified records and Terry presented no evidence. The trial court set aside the revocation of Terry's driving privileges, finding that the arresting officer lacked reasonable grounds to believe that Terry was driving a motor vehicle while in an intoxicated or drugged condition. Director appeals.
In his sole point of error on appeal, Director argues that the trial court erred when it set aside the revocation of Terry's driving privileges under Section 577.041, because the officer's observations, coupled with Terry's admission and refusal of any further tests formed a prima facie case of driving while intoxicated. Terry maintains that the officer lacked reasonable grounds for arrest, because the arrest was based upon the officer's subjective observation of the odor of intoxicants and his alleged failure of the gaze nystagmus test.
We will affirm the trial court's decision unless it is not supported by substantial evidence, is against the weight of the evidence, or misstates or misapplies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). We view the evidence and all reasonable inferences drawn therefrom in the light most favorable to the trial court's judgment. Jurgiel v. Director of Revenue, 937 S.W.2d 397, 398 (Mo. App. E.D. 1997). The trial court's decision is limited to a determination of whether (1) the individual was arrested; (2) the arresting officer had reasonable grounds to believe the individual was driving while intoxicated; and (3) the individual refused to submit to the test. Section 577.041.4; Borgen v. Director of Revenue, 877 S.W.2d 172, 174 (Mo.App. W.D.1994).
"Reasonable grounds" for arrest for driving while intoxicated is virtually synonymous with probable cause. Wilcox v. Director of Revenue, 842 S.W.2d 240, 242 (Mo. App. W.D. 1992). The standard for determining probable cause is the probability of criminal activity rather than a prima facie showing of guilt. Id. at 243. "The quantum of proof required to show reasonable grounds is substantially less than that required to establish guilt beyond a reasonable doubt." Baptist v. Lohman, 971 S.W.2d 366, 368 (Mo. App. E.D. 1998).
Page 1 2 Missouri DUI Attorneys
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