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Moody v. Director of Revenue4/4/2000
ed, (2) whether the arresting officer had reasonable grounds to believe that the person was driving while intoxicated, and (3) whether the person refused to submit to the test. Harder v. Director of Revenue, 969 S.W.2d 340, 341 (Mo. App. 1998).
Here, the trial court erred in finding Driver had not refused to submit to the breath test. Missouri courts have held that an arrested person does not have a constitutional right to speak to an attorney before deciding whether to take a breath test. Spradling v. Deimeke, 528 S.W.2d 759, 764 (Mo. 1975); Albrecht v. Director of Revenue, 833 S.W.2d 40, 41 (Mo. App. 1992). However, under section 577.041.1, a person does have a limited statutory right to confer with counsel prior to making that decision. Albrecht, 833 S.W.2d at 41. This time is limited to 20 minutes. Section 577.041.1.
However, the limited right to contact an attorney before taking a breath test is not triggered unless the arrested driver specifically requests to talk with an attorney. State v. Foster, 959 S.W.2d 143, 146 (Mo. App. S.D. 1998); Green v. Director of Revenue, 849 S.W.2d 658, 660 (Mo. App. W.D. 1993).
In the case at hand, Driver never specifically requested from Officer Rickerd to talk with his attorney. Rickerd testified Driver never made such a request. Driver's own testimony is that he told his wife to consult with an attorney. Driver did not testify that he told Rickerd of this request. He simply refused the breath test. Without a specific request to consult with an attorney directed to Rickerd, Driver did not invoke his limited statutory right to consult with an attorney.
In addition, Driver acknowledged that he refused the test. He stated that he later rescinded that refusal and asked to take the test. However, this is insufficient. Under section 577.041.1, once a driver has refused to submit to a breath test, then "none shall be given." Once it has been determined that a driver has refused to submit to a breath test, the driver's subsequent request or offer, at a later time, to take the test does not alter his or her earlier refusal. Blanchard v. Director of Revenue, 844 S.W.2d 589, 590 (Mo. App. 1993); See also, Borgen v. Director of Revenue, 877 S.W.2d 172, 175 (Mo. App. W.D. 1994); Dudenhoeffer v. Director of Revenue, 780 S.W.2d 701, 703 (Mo. App. W.D. 1989). Therefore, the trial court erroneously applied the law in finding Driver could have rescinded his refusal and its decision is against the weight of the evidence, particularly where Driver admitted he refused to take the test.
Finally, the facts as recited above show Director satisfied its prima facie case concerning whether the arresting officer had reasonable grounds to believe Driver was driving while intoxicated. See, Epperson v. Director of Revenue, 841 S.W.2d 252, 255 (Mo. App. W.D. 1992). The record would not support a conclusion that the officer lacked reasonable grounds to arrest Driver for driving while intoxicated or that Driver did not refuse the breathalyzer test. Consequently, the trial court erred in reinstating the driving privileges of Driver. We reverse and remand the cause to the trial court to enter a judgment reinstating the revocation of Driver's driving privileges.
Reversed and remanded.
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