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Brown v. Director of Revenue11/14/2000
Robert M. Brown appeals the order of the Circuit Court of Clay County, Missouri, revoking his driver's license under section 577.041, for refusing to submit to chemical tests as required by the Implied Consent Law. Section 577.020. At issue is whether the failure of law enforcement authorities to allow Mr. Brown, after his request, the opportunity to contact an attorney before taking the breath test requires the setting aside of his license revocation. The judgment revoking Mr. Brown's driver's license was erroneous and, therefore, is reversed.
BACKGROUND
On June 19, 1999, at 12:05 a.m., appellant ("Brown") was pulled over by Officer Brian Lawrence of the North Kansas City, Missouri, Police Department. He was asked by Officer Lawrence to submit to field sobriety tests. Mr. Brown advised the officer that he wanted to speak to a lawyer before taking any tests. He was transported to the police station, where he was given the opportunity to use a telephone. Officer Lawrence testified that he gave Mr. Brown a telephone book and told him he had 20 minutes to contact a lawyer, that Mr. Brown attempted to do so and Officer Lawrence even assisted with the calls, and that Mr. Brown apparently was unable to reach a lawyer.
Twenty-two minutes after Mr. Brown began his attempts to reach a lawyer, at 12:40 a.m., Officer Lawrence read to him the Miranda warnings and attempted an interview. Mr. Brown refused to submit to an interview. Officer Lawrence then read to him the Implied Consent Law, section 577.041, RSMo Cum. Supp. 1998, and asked him to take a breath test. Officer Lawrence's report noted that Mr. Brown responded, "I will not take the test until I talk to my lawyer." Officer Lawrence deemed this a refusal. Mr. Brown then asked to take the breath test. Officer Lawrence testified that Mr. Brown's request came approximately 10 minutes after the Implied Consent Law was read to him and that he refused to administer it to Mr. Brown at that time. Mr. Brown then asked to be transported to a hospital for an independent breath test. Officer Lawrence refused that request as well.
At the revocation hearing, the trial court found in favor of the state and ordered Mr. Brown's driver's license revoked. This appeal followed.
APPEAL
Mr. Brown raises three points of error in the trial court's order upholding the revocation of his driver's license. In his first point, he claims the court erred in ruling that the 20-minute waiting period required under section 577.041.1 can occur prior to the request to submit to a chemical test. In his second point, he claims the court incorrectly ruled that the 20-minute waiting period requirement was satisfied prior to the requested chemical test. In his third and final point, Mr. Brown argues the revocation of his driver's license violated his constitutional rights to obtain exculpatory evidence by way of obtaining an independent breath test. Because the case is reversed on other grounds, Mr. Brown's final point is not discussed herein.
STANDARD OF REVIEW
On review, the trial court's ruling must be upheld unless it is unsupported by substantial evidence, is against the weight of the evidence, or misstates or misapplies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). To uphold the revocation of a driver's license for refusal to submit to a chemical test, the trial court shall determine only the following: 1) whether the driver was arrested; 2) whether the arresting officer had reasonable grounds to believe the driver was driving while intoxicated; and 3) whether the driver refused to submit to the test. McMaster v. Lohman, 941 S.W.2d 813, 815 (Mo. App. 1997); Borgen v. Direct
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