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Testerman v. Director of Revenue11/7/2000
police officer?
A. No.
Q. Okay. So if the officer was looking at you and doesn't see you chewing or anything like that, probably at that point you would have swallowed it?
A. That or I'd just suck on it. So --
Q. You did testify that you usually chew them?
A. Well, towards the end I will, you know. Not always.
Q. And you're not sure at what point you were -- You're not sure at what point this peppermint had been completely eaten?
A. No, sir.
As to the respondent's testimony, the Director contends that, even if believed, the trial court could not reasonably infer therefrom that the respondent did, in fact, have a peppermint in her mouth during the observation period. We agree.
A careful review of the respondent's testimony discloses that she did not testify as to the specific time when she placed the peppermint in her mouth or how long it remained there. As such, to determine that she had a peppermint in her mouth during the observation period, the court would have had to rely on the reasonable inferences from the evidence presented. Although the trial court in a civil case is free to rely on inferences from the evidence in determining whether a party has met its burden of proof, they must be reasonable in nature, and the trial court cannot rely on guesswork, conjecture and speculation. Herberholt v. dePaul Cmty. Health Center, 625 S.W.2d 617, 623 (Mo. banc 1981). In a civil case:
the shown circumstances must be such that the facts necessary to support the finding may be inferred and reasonably must follow, that the existence of such facts may not depend upon guesswork, conjecture and speculation, and that the evidence should have a tendency to exclude every reasonable conclusion other than the one desired. Although an inference need not be justified beyond all doubt and is not precluded by a mere possibility that the contrary may be true, the law does not contenance the drawing of forced and violent inferences which do not arise from a reasonable interpretation of the facts actually shown . . . . Id. (citations omitted).
In this regard, the record favorable to the trial court's judgment would indicate that the respondent was stopped at 1:36 a.m., arrested at 1:46 a.m., asked for her consent to submit to a breathalyzer test at 1:58 a.m., and given the breathalyzer test at 2:17 a.m. At best, when viewed in a light most favorable to the respondent, the evidence would support the fact that sometime between 1:46 and 1:58 a.m. the respondent placed a peppermint in her mouth and that it was still there at 1:58 a.m., when Officer Bonner asked her whether she would consent to taking a breathalyzer test. However, without engaging in pure speculation, there is no way to determine whether the mint was still in her mouth during the observation period, 2:02 a.m. to 2:17 a.m. The respondent did not testify that the mint was still in her mouth during this time nor did she testify as to basic underlying facts which would have allowed the trial court to reasonably infer that it was still there, such as how big the mint was or the average time it took her to finish one. Thus, in concluding that the Director's prima facie case for suspension under section 302.505.1 had been rebutted by the fact that the respondent had a peppermint in her mouth during the observation period, the trial court clearly had to resort to an inference that was unreasonable in that it relied on speculation, which it could not do. Riley v. Riley, 847 S.W.2d 86, 88 (Mo. App. 1992); Boatmen's Bank of Butler v. Berwald, 752 S.W.2d 829, 833 (Mo. App. 1988). Hence, the trial court's judgment reinstating the respondent
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