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Calicotte v. Director of Revenue6/26/2000
he judgment regarding the test is contrary to an announcement the trial court made at the conclusion of the evidence. At that juncture, the trial court declared: "There's no question that the Petitioner refused to submit to the test." Later, the court added: "There's no question about the stop or the refusal."
This court shall not attempt to reconcile the trial court's remarks with the finding in the judgment. Taking the judgment as this court finds it, this court shall treat the trial court's finding on the issue specified in section 577.041.4(3) as a finding that Calicotte refused to submit to the test.
There is no evidence to support such a finding. The only evidence before the trial court was that Smith asked Calicotte to "take a breathalyzer test" and Calicotte refused. Smith's uncontradicted testimony on that subject included this:
"Q. Did you inform him that his license would be revoked for one year if he did not take the breath test?
A. Yes, sir.
Q. Did you inform him that his refusal to take a breath test may be used against him in a court of law?
A. Yes, sir.
Q. Did he appear to understand what you told him regarding the breath test?
A. He stated that he did.
Q. Now, having said all that, did Mr. Calicotte refuse to take the breath test?
A. Yes, sir, he did.
Q. And during the time you had Mr. Calicotte in the sheriff's department, did he ever ask to speak with an attorney?
A. No, sir, he did not.
Q. What was Mr. Calicotte's attitude throughout this time that you had him in custody?
A. He was cocky and . . . antigonostic (sic). . . . He had state that his brother, I believe, had got a DWI sometime previous and that he knew how to beat this, that it wouldn't go anywhere, and he would have his license back and it would not be suspended for one year."
Given that unchallenged evidence, the trial court's finding in the judgment that Smith "did not have reasonable grounds to believe Kevin Calicotte did refuse to submit to the test" is unsupported by substantial evidence and is against the weight of the evidence. Accordingly, this court holds the trial court erred in failing to find the issue in section 577.041.4(3) not to be in the affirmative.
The judgment is reversed and this cause is remanded to the trial court with a directive to enter judgment affirming Director's revocation of Calicotte's driver's license.
Separate Opinion: None
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