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Moody v. Director of Revenue4/4/2000
Appeal From: Circuit Court of Gasconade County, Hon. John C. Brackmann
Opinion Vote: REVERSED AND REMANDED. Gaertner and Crahan, JJ., concur.
Opinion:
The Director of Revenue (Director) appeals from the circuit court's judgment reinstating the driving privileges of George Francis Moody (Driver). Director revoked Driver's driving privileges for failure to submit to a chemical test pursuant to section 577.041, RSMo Cum. Supp. 1997, following his arrest for suspected driving while intoxicated. Driver sought and received a hearing under section 577.041.4. Afterward, the trial court reinstated Driver's driving privileges, concluding Driver's "refusal to be transitory and changed to willingness; therefore, he did not refuse." The court made no further findings. We reverse and remand.
At the hearing, the arresting officer provided an account of the events provoking the revocation of Driver's license. Officer Robert Rickerd of the Owensville Police Department testified that on January 18, 1998, at about 1:45 a.m., he was traveling behind Driver's vehicle when the vehicle swerved over the center line two or three times. Rickerd stopped Driver. When he approached the vehicle, he smelled a strong alcoholic odor coming from Driver's breath. He also noticed that Driver's eyes were watery, his pupils dilated, and his speech slurred. Rickerd asked Driver to step out of the vehicle to perform some field sobriety tests. As Driver walked from the vehicle, Rickerd noticed he was swaying. Rickerd performed the horizontal gaze nystagmus test and one-legged stand. Driver failed both tests. Rickerd believed Driver was intoxicated and he placed him under arrest. Rickerd then transported Driver to the police station for a breathalyzer test. At the station, Rickerd gave Driver his Miranda rights and read him the Implied Consent warning. Rickerd testified that when asked to submit to the breathalyzer test, Driver refused. Rickerd said Driver never requested an attorney.
At the hearing, Driver testified that his wife was with him when he was arrested. When they arrived at the police station, Driver asked her to go call his sister and consult with an attorney. Driver's wife then left the station. Driver admitted that when Rickerd asked him to take the test, he refused. After Rickerd advised him that he lost his license, Driver then changed his mind and told him he would take the test. Driver said he initially refused the test because his wife went to get bond money and the advice of an attorney.
On appeal, the Director contends the trial court erred in setting aside Driver's revocation because the court misinterpreted the law and its decision was against the weight of the evidence. Director points out that Driver initially refused the breathalyzer test and his later agreement to take the test could not prevent his license from being revoked. In response, Driver contends he initially refused the test because he wanted to consult with an attorney and he is entitled to 20 minutes to do so under the statute and further, any failure to allow him to do so violates his constitutional right to counsel.
Our review of the trial court's decision is controlled by Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Therefore, the decision will be affirmed unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Id. At a court hearing to review the license revocation, the director has the burden of proof. McMaster v. Lohman, 941 S.W.2d 813, 815-16 (Mo. App. 1997).
In a proceeding under section 577.041, the trial court is to determine (1) whether the person was arrest
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