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Turrell v. Missouri Department of Revenue11/28/2000
Appeal From: Circuit Court of Platte County, Hon. Gary Dean Witt
Opinion Vote: REVERSED.
Breckenridge and Smart, Jr., JJ., concur.
Opinion:
The Director of Revenue ("Director") appeals the judgment setting aside the Director's revocation of Ronald Keith Turrell's ("Turrell") driving privileges for operating a motor vehicle with a blood alcohol concentration of at least .10% by weight. Section 302.505, RSMo. Cum. Supp. 1996. The Director contends that the trial court misinterpreted and misapplied the law and that its judgment in favor of Turrell was against the weight of the evidence. We reverse.
STANDARD OF REVIEW
The trial court's decision will be affirmed unless it is unsupported by substantial evidence or misstates or misapplies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). In hearing a petition for trial, under section 302.535, of a revocation or suspension based on section 302.505, RSMo. Cum. Supp. 1996, the issues before the trial court are: (1) whether the driver was arrested upon probable cause for violating an alcohol-related offense; and (2) whether the driver had been driving with a blood alcohol content of at least .10% by weight. Kienzle v. Director of Revenue, 944 S.W.2d 326, 327 (Mo.App. 1997). We need not defer to the trial court's findings when the evidence is not in conflict. Justice v. Director of Revenue, 890 S.W.2d 728, 731 (Mo.App. 1995). Conversely, if any part of the witness' testimony can be viewed as inaccurate or inconsistent, "the usual rule attends and we give deference to the trial court in its resolution of all witness credibility questions." Endsley v. Director of Revenue, 6 S.W.3d 153, 161 (Mo. App. 1999). Once the Director has presented a prima facie case, the burden shifts to the driver to rebut the Director's prima facie case. Smith v. Director of Revenue, 13 S.W.3d 700, 705 (MoApp. 2000).
FACTS
On November 6, 1999, Missouri Highway Patrol Trooper Michael D. Moats stopped Turrell's vehicle for erratic driving. Trooper Moats observed a strong odor of alcohol on Turrell's breath, that his eyes were bloodshot and that his speech was slurred. The Trooper asked the driver to perform several field sobriety tests all of which he performed poorly. Turell was arrested for driving while intoxicated and taken to a police station where he consented to a breath test. The Trooper notified the Director that the test showed a blood alcohol concentration of .163%. The Director then suspended Turrell's driving privileges.
At the trial de novo the Director offered into evidence the testimony of Trooper Moats and the Department of Revenue Records concerning Turrell's arrest. Turrell did not testify. The Trooper testified, as set forth above, to the facts of the arrest and, without objection, to the Trooper's testimony that Turrell's BAC was .163%. The Director's certified records were admitted over the objection of Turrell. The basis for that objection will be discussed infra.
Probable Cause to Arrest the Driver
We are not favored by a brief from Turrell who appears pro se on the appeal. Nor were there any specific findings requested or made as to the court's reasons for setting aside the Director's action. "Probable cause for arrest exists when an officer possesses facts which would justify a person of reasonable caution to believe that an offense has been or is being committed and that the individual to be arrested has committed it." Wilcox v. Director of Revenue, 842 S.W.2d 240, 242 (Mo.App. 1992). Here the evidence clearly presented probable cause for Trooper Moats to arrest Turrell for driving while intoxicated. No contrary evi
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