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Sutton v. Director of Revenue7/7/2000
The Director of Revenue ("Director"), appeals the judgment of the circuit court finding that Paul A. Sutton ("Petitioner"), did not unequivocally refuse to submit to a chemical test as prescribed by section 577.041.1 and ordering the reinstatement of petitioner's license to operate a motor vehicle. See generally section 577.041.
In his sole point relied on, Director maintains that the trial court erred in setting aside the revocation of Petitioner's license to operate a motor vehicle. He maintains that at trial he had proven all the elements necessary to revoke Petitioner's driver's license. He asserts that the trial court misinterpreted and misapplied the law and that the trial court's findings were against the weight of the evidence.
On the other hand, Petitioner maintains that Director failed to prove a prima facie case that Petitioner refused to submit to a chemical test. He argues that at the hearing the Director offered only hearsay testimony to support the refusal and that Petitioner had, indeed, submitted to a chemical test. Therefore, Petitioner maintains that the trial court did not err in "restraining the Director from revoking" Petitioner's license to operate a motor vehicle.
"The trial court's decision must be affirmed 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." Benson v. Director of Revenue, 937 S.W.2d 768, 769 (Mo.App. 1997).
There are three things that the trial court must find in order to uphold the revocation of a driver's license for failure to submit to chemical testing pursuant to section 577.041: (1) that the driver was arrested; (2) that the officer who arrested the driver had reasonable grounds to believe that the driver was driving while intoxicated; and (3) that the driver refused to submit to a chemical test. Id. at 769-70. "The trial court must reinstate driving privileges if it determines that one or more of these requirements has not been met." Id. at 770.
There is no mysterious meaning to the word "refusal." In the context of the implied consent law, it simply means that an arrestee, after having been requested to take the breathalyzer test, declines to do so of his own volition. Whether the declination is accomplished by verbally saying, 'I refuse', or by remaining silent and just not breathing or blowing into the machine, or by vocalizing some sort of qualified or conditional consent or refusal, does not make any difference. The volitional failure to do what is necessary in order that the test can be performed is a refusal. Id. (quoting Spradling v. Deimeke, 528 S.W.2d 759, 766 (Mo. 1975)); see McMaster v. Lohman, 941 S.W.2d 813, 817 (Mo.App. 1997).
According to the record, Petitioner was involved in an automobile accident at about midnight on December 19, 1998. Officer Gary McKinney testified at trial, and the stipulated "police officer's report" so reflected, that while investigating the accident the officer smelled a moderate odor of intoxicants coming from Petitioner and noted that Petitioner's balance was impaired and his speech was slurred. Petitioner admitted to ingesting two beers just before the accident. Petitioner failed several field sobriety tests, including the Horizontal Gaze Nystagmus test, the one-leg stand test, and the walk and turn test. Petitioner submitted to a preliminary breathalyzer test (PBT), which indicated that a "high level of alcohol was present in his blood." Petitioner was then arrested and transported to the police station where officer McKinney advised Petitioner of his rights under the "Implied Consent Law," see section 577.041.1, together with his Miranda "right
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