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Calicotte v. Director of Revenue6/26/2000
Appeal From: Circuit Court of Dent County, Hon. William C. Seay
Opinion Vote: REVERSED AND REMANDED WITH DIRECTIONS. Parrish and Shrum, JJ., concur.
Opinion:
Citing section 577.041.3, the Director of Revenue ("Director") revoked the license of Kevin Ray Calicotte ("Calicotte") to operate a motor vehicle. Director based the revocation on Calicotte's refusal to submit to a chemical test of his breath pursuant to section 577.020.1.
Calicotte petitioned the circuit court for review per section 577.041.4. Following an evidentiary hearing, the court entered judgment nullifying the revocation. Director brings this appeal from that judgment.
The testimony of Dent County Deputy Sheriff Craig E. Smith ("Smith") was the sole evidence presented to the trial court.
About 3:55 p.m., June 4, 1999, Smith heard "radio traffic" from the "dispatcher" that Calicotte had been "pulled over" by the sheriff and another deputy on "Highway 72 in the area of the FF Junction." Smith arrived at that site " pproximately 15 seconds" later. Smith observed the sheriff speaking to Calicotte's "girlfriend." Calicotte was "in the driver's portion of the vehicle." The vehicle "was not in motion."
Smith asked Calicotte to "step out of the car." Calicotte complied.
Smith noticed a "strong odor" of "intoxicants" emanating from Calicotte. Calicotte's eyes "appeared to be bloodshot and watery."
Smith asked Calicotte whether "he'd been drinking recently." Calicotte replied he had drunk a "couple beers."
Smith asked Calicotte to perform a "field sobriety" test, the "walk-and-turn." Describing how Calicotte performed, Smith said, "Poorly." Smith asked Calicotte to perform other tests; Calicotte refused.
Smith arrested Calicotte for driving while intoxicated and took him to the Dent County Sheriff's office. There, Smith asked Calicotte to "take a breathalyzer test." Calicotte refused.
Smith took possession of Calicotte's driver's license per section 577.041.1 and sent Director a report of the incident. section 577.041.2.
On cross-examination by Calicotte's lawyer, Smith conceded Calicotte never admitted driving the vehicle and Calicotte's speech was "coherent."
Calicotte's lawyer argued to the trial court that Director failed to prove Calicotte "drove that car." Furthermore, said Calicotte's lawyer, Smith did not have "reasonable grounds to believe [Calicotte] was intoxicated."
Section 577.041 specifies the issues the trial court had to resolve. It reads, in pertinent part:
"4. . . . At the hearing the court shall determine only:
(1) Whether or not the person was arrested or stopped;
(2) Whether or not the officer had:
(a) Reasonable grounds to believe that the person was driving a motor vehicle while in an intoxicated . . . condition; or
(3) Whether or not the person refused to submit to the test.
5. If the court determines any issue not to be in the affirmative, the court shall order the director to reinstate the license or permit to drive."
The judgment included this:
" he Court makes the following findings: 1) that Kevin Calicotte was arrested or stopped; 2) that the arresting officer did not have reasonable grounds to believe Kevin Calicotte was driving a motor vehicle; 3) that the arresting officer did not have reasonable grounds to believe Kevin Calicotte did refuse to submit to the test. The Court therefore finds issues 2 and 3 for [Calicotte] and against the Director of Revenue."
Director's brief presents
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