 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Terry v. Director of Revenue4/4/2000
The standard is one of a "prudent, cautious and trained police officer at the scene at the time of arrest." Wilcox, 842 S.W.2d at 243. Although mere suspicion is not sufficient for reasonable grounds, absolute certainty is not required. Id.
Terry argues that "the only other observations noted by the arresting officer in the alcohol influence report is the subjective odor of alcohol." Contrary to this argument, the report notes ten observations in addition to failure of the HGN test which would lead a prudent, trained officer to believe he had been drinking, and is accompanied by a narrative report. The arresting officer stopped Terry for an undisputed traffic violation. When Terry joined him in the patrol car, Officer Fowler detected a strong odor of intoxicants. The officer also noted that Terry's eyes were bloodshot, glassy and watery, his speech was slurred, and that he was swaying as he stood and walked. Terry admitted to having "a couple" of drinks. He was uncooperative and had difficulty following instructions. He failed one field sobriety test and refused any other testing. The trial court found that the officer's observations were not sufficient to establish reasonable grounds for arrest for driving while intoxicated. We disagree.
This court has previously held that probable cause for arrest for driving while intoxicated exists where an officer stops a vehicle for a traffic violation, observes the driver's eyes to be bloodshot and glassy, detects the odor of alcohol on the driver's breath, the driver admits to drinking, and fails one or more field sobriety tests. Eggleston v. Lohman, 954 S.W.2d 696, 697 (Mo. App. W.D. 1997); Lewis v. Lohman, 936 S.W.2d 582, 584 (Mo. App. W.D. 1996). See also Knipp v. Director of Revenue, 984 S.W.2d 147, 152 (Mo. App. W.D. 1998); Wilcox, 842 S.W.2d at 243-44.
Although Terry argues that the he only "allegedly" failed the horizontal gaze nystagmus test in his Point Relied On, he does not support this point in the argument section of his brief. Rule 84.04(e). Regardless of this omission, we note that Terry stipulated to the admission into evidence of the Alcohol Influence Report and made no objection to any part thereof. The Report reflects that he failed the gaze nystagmus test. Thus, the unobjected to and unrefuted evidence in the record conclusively contradicts his contention. Moreover, field sobriety tests are not mandatory. Chancellor v. Lohman, 984 S.W.2d 857, 858 (Mo. App. W.D. 1998). The results of such tests are merely an aid to be used by the officer in conjunction with other observations to determine if he has probable cause for arrest. Id. Even in the absence of any field sobriety tests, we have held similar observations by an arresting officer to constitute sufficient evidence to meet the test of probable cause. Duffy v. Director of Revenue, 966 S.W.2d 372, 380 (Mo. App. W.D. 1998); McNeill v. Wallace, 699 S.W.2d 534, 535 (Mo. App. W.D. 1985).
For the foregoing reasons, we conclude that the trial court erred in finding that Officer Fowler did not have reasonable grounds to believe that Terry was driving while intoxicated. Accordingly, the judgment of the trial court is hereby reversed and the cause is remanded for reinstatement of the Director's revocation of Terry's driving privileges.
Page 1 2 Missouri DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|