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Zimmerman v. Director of Revenue3/30/1999
rphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Duffy v. Director of Revenue, 966 S.W.2d 372, 376 (Mo. App. 1998). We must affirm the judgment unless there is no substantial evidence to support it, 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).
Missouri statutes require that, if a person under arrest for driving while intoxicated refuses to submit to a breathalyzer test, evidence of the refusal is admissible into evidence. Section 577.041.1 RSMo (1994). The arresting officer's request "shall include the reasons of the officer for requesting the person to submit to a test and also shall inform the person that evidence of his refusal to take the test may be used against him and that his license shall be immediately revoked upon his refusal to take the test." Id. This warning satisfies due process unless the words used either (1) fail to inform the arrestee of all the consequences of refusal or (2) mislead the arrestee into believing that the consequences of refusal are different than the law actually provides. Teson v. Director of Revenue, 937 S.W.2d 195, 197 (Mo. banc 1996). Uninformed decisions are non-consensual. Id. No refusal is valid if the arresting officer omits statutorily necessary information. McMaster, 941 S.W.2d at 816.
A person whose license has been revoked may petition for court review under Section 577.041.4. At the hearing the Judge shall determine only:
(1) Whether or not the person was arrested;
(2) Whether or not the arresting officer had reasonable grounds to believe that the person was driving a motor vehicle while in an intoxicated condition; and
(3) Whether or not the person refused to submit to the test.
Id. If the Judge finds any issue not to be in the affirmative, the Judge is required to order the director to reinstate the license. Section 577.041.5.
The court found that petitioner refused to take the test. The evidence supporting this finding was that the arresting officer testified, without objection, that she read the Missouri Implied Consent Law to petitioner from "the form" and that petitioner refused to take the breathalyzer test. In addition, petitioner admitted on cross-examination that the Missouri Implied Consent Law was read to him and that he refused the breathalyzer test. Petitioner, who was represented by an attorney, did not object to the use of the term "Missouri Implied Consent Law" in the question and did not seek any qualification or clarification of the term. When the police officer testified that she read the Implied Consent Law to him, petitioner likewise did not cross-examine her about what she meant by that term or "the form." Further, petitioner did not object to the evidence of refusal on the grounds that the refusal was involuntary or obtained without proper warnings. Petitioner did not raise the issue until closing argument when he argued that the court could not infer that the proper warnings were given without specific reference in the record to what the "Missouri Implied Consent Laws" were.
Courts, attorneys, and police commonly refer to giving the warnings required by Section 577.041.1 as "reading the Implied Consent Law" to someone. Our appellate courts have routinely used the term "reading" or "advising of" the "implied consent law" to refer to reading the warnings contained in Section 577.041. See, e.g. McMaster, 941 S.W.2d at 816-17; Wilmoth v. Director of Revenue, 903 S.W.2d 595, 597-600 (Mo. App. 1995). See also Knipp v. Director of Revenue, 984 S.W.2d
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