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State v. Wickerham8/29/2000
Appeal From: Circuit Court of Ste. Genevieve County, Hon. Raymond M. Weber
Opinion Vote: AFFIRMED. Russell and Teitelman, JJ., concur.
Opinion:
Donald H. Wickerham (Defendant) appeals the judgment of conviction for the Class A misdemeanor of driving while intoxicated in violation of Section 577.010, RSMo 1994. We affirm.
On August 8, 1998 at about 7 p.m., the City Marshal for the City of Saint Mary, Ronald Barnett, was assisting a stranded motorist when another car pulled up. The driver of the car told Barnett that the driver of a car behind him was all over the road, and he believed the driver was drunk. Barnett got into his patrol car and headed south on Highway 61. Barnett saw a car matching the description and followed it. He observed the car moving erratically, going back and forth and running off the road. The car also weaved into the other lane of traffic.
Barnett activated his lights and siren and pulled the car over to the side of the road. Defendant was driving the car and gave Barnett his driver's license, registration, and proof of insurance. Barnett smelled a strong odor of alcohol and noted Defendant's speech was slurred. Barnett took his license to run a check on Defendant. Barnett radioed that he had a possible drunk driver and requested assistance. A trooper with the Missouri Highway Patrol, Dan Hammersmeier, arrived on the scene about 15-20 minutes after Barnett stopped Defendant. Hammersmeier conducted three field sobriety tests, all of which Defendant failed. Hammersmeier then arrested Defendant for driving while intoxicated. A breathalyzer test showed Defendant's blood alcohol content was .167 percent.
After trial, the court convicted Defendant of driving while intoxicated and sentenced him to a $350 fine and 60 days in jail. The court suspended execution of the 60-day jail sentence and placed Defendant on probation for two years. Defendant appeals.
Defendant contends that the trial court erred in overruling his motion to suppress and allowing testimony of City Marshal Barnett because Barnett de facto arrested him and had no authority to do so since he was not certified in accordance with Section 79.055, RSMo 1994.
Section 79.055, RSMo 1994, provides that city marshals in fourth-class cities who are elected to his or her first term "shall, within six months of such election, cause to be filed with the city clerk of the city and director of the department of public safety proof that he has completed the training program formulated pursuant to sections 590.170 and 590.175, RSMo, or some other comparable training program . . . ." The marshal may receive an extension if such a program is not available. Sections 590.170 and 590.175, RSMo 1994, provide for the director of the Department of Public Safety to formulate a special training program of at least 120 hours of instruction covering all major phases of law enforcement.
Barnett testified that he never received a certification by the Department of Public Safety concerning peace officer standards and training programs. Defendant contends, therefore, that Barnett's arrest of him is invalid.
However, the facts of this case, undisputed by Defendant, show that Barnett never arrested him. The actual arrest for driving while intoxicated occurred by Hammersmeier. He was the officer who administered the field sobriety tests, took Defendant into custody, and administered the breathalyzer test. Hammersmeier is a Missouri Highway Patrol trooper and Defendant does not contend he is uncertified. See, Kohlhoff v. McNeill, 725 S.W.2d 37, 38 (Mo. App. E.D. 1986).
Here, none of Barnett's actions indicate that he ar
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