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Zimmerman v. Director of Revenue3/30/1999
This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.
Missouri Court of Appeals Eastern District
Appeal From: Circuit Court of St. Louis County, Hon. Carolyn C. Whittington
Citation:
Opinion Vote: AFFIRMED. Simon, P.J. and Mooney, J., concur.
Opinion:
Petitioner, Randy Zimmerman, appeals from the trial court's judgment sustaining the revocation of his driver's license pursuant to Section 577.041 RSMo (1994). Petitioner contends that the trial court erred in sustaining the revocation of his license because respondent, the Director of Revenue (the director), failed to meet her burden of proof that petitioner's refusal of the chemical test was voluntary, intentional and informed because the only trial testimony was that the police officer read petitioner the Missouri Implied Consent Law from a form, but the state did not put the form into evidence or adduce evidence that the officer gave the warnings required by Section 577.041.1. We affirm on the grounds that petitioner waived any claim that the specific warnings were not in evidence because he admitted without qualification or objection that an officer had read the Missouri Implied Consent Law to him, thus tacitly admitting that the warnings required by Section 577.041.1 were given to him.
The facts viewed in the light most favorable to the state are as follows: About midnight on February 20, 1997, Officer Carman, a police officer for the city of Brentwood, was traveling eastbound on Highway 40 near McKnight. She witnessed a red Cadillac weaving across the road and followed the car as it exited off of Highway 40 and proceeded south on Hanley Road. The Cadillac continued to weave back and forth and almost hit another car. Officer Carman activated her emergency lights, but the Cadillac failed to stop for about another half a mile. Officer Carman shined her lights in the Cadillac prior to stopping it and noticed that the driver was drinking something.
After stopping the Cadillac, Officer Carman approached the vehicle and noticed a liquid substance on the console and wet spots on the driver's pants. Officer Carman also observed what appeared to be vomit on the driver's pants and shoes once he had been asked to exit the vehicle. In response to questioning the driver stated that he had been drinking earlier in the evening, but not recently. Driver allowed Officer Carman to look in his car where she found a bottle of mouthwash. The driver refused to do field sobriety tests, explaining to the officer that he was an attorney and knew how that process worked. Officer Carman placed the driver, the petitioner in this case, under arrest for driving while intoxicated and took him to the Brentwood police station.
Officer Carman advised petitioner of his Miranda rights at the police station and then read "the Missouri Implied Consent Law" to petitioner. Officer Carman believed she had read the implied consent law "off of the form." Petitioner admitted that "the Missouri Implied Consent Law" was read to him. Both the officer and petitioner testified that petitioner refused to take the breathalyzer test.
The director notified petitioner that his driving privileges would be revoked for one year. Petitioner filed a petition for review and stay of his license revocation. The circuit court found that petitioner had been arrested upon probable cause to believe that he had committed an alcohol-related traffic offense and refused to submit to a chemical breath test. The court sustained the revocation of petitioner's license pursuant to Section 577.041 RSMo (1994).
We review this appeal under Mu
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