Opinion
No. WD 65762
August 29, 2006
Appeal from the Circuit Court of Morgan County, The Honorable Kevin P. Schehr, Judge.
Before Breckenridge, P.J., Howard and Holliger, JJ.
The Director of Revenue appeals the judgment of the circuit court setting aside the director's one-year revocation of Marcel D. Guhr's driver's license. The director revoked Mr. Guhr's driver's license, pursuant to section 577.041, RSMo Cum. Supp. 2003, for his refusal to submit to a Breathalyzer test, as authorized by section 577.020. In her sole point on appeal, the director claims that the trial court erred in reinstating Mr. Guhr's driving privilege because it misapplied the law in its judgment and its judgment is against the weight of the evidence. Specifically, the director claims that the trial court erroneously determined that the arresting officer did not have reasonable grounds to arrest Mr. Guhr for driving while intoxicated, at the time of the initial arrest, when section 577.041 only requires that the officer have reasonable grounds to arrest at the time when Mr. Guhr was later arrested for driving while intoxicated. The director asserts that she established a prima facie case for revocation, which was not rebutted by Mr. Guhr, so the judgment should be reversed and the revocation of Mr. Guhr's license reinstated. Because the trial court, in its discretion, was free to find that there was insufficient evidence to demonstrate that the arresting officer had probable cause to arrest Mr. Guhr for driving while intoxicated, the director failed to make a prima facie case that Mr. Guhr was driving while intoxicated. Therefore, the judgment of the trial court reinstating Mr. Guhr's driver's license is affirmed.
All statutory references are to the 2003 Cumulative Supplement to the Revised Statutes of Missouri 2000.
Factual and Procedural History
At 9:55 P.M. on the evening of October 25, 2002, while Officer William Crossen was assisting another officer with a traffic stop, he observed a blue Chevrolet pickup leave a bowling alley parking lot. The driver accelerated the pickup in a manner that caused the rear tires to lose traction and spin on the pavement. Officer Crossen then watched the pickup stop at a stop sign. When driving away from the stop sign, the driver again accelerated the pickup so that its rear tires lost traction with the pavement.
Officer Crossen returned to his vehicle so that he could pursue and stop the pickup. He momentarily lost sight of the pickup when it turned a corner. He was proceeding on Dekalb Street, approaching Oak Street, when he heard a loud vehicle accelerating from the north. As he turned north on Oak Street, he saw the same pickup truck. He observed the driver turn on the lights of the pickup and then accelerate, traveling south on Oak Street. Officer Crossen turned his vehicle around to follow the pickup. He next observed the pickup backing out of a bowling alley parking lot. The pickup then pulled back into the parking lot.
After Officer Crossen drove past the pickup, it again backed out of the bowling alley parking lot into the street. He was able to stop the vehicle, at that time, in the bowling alley parking lot. As Officer Crossen approached the vehicle, the driver got out of the pickup, placed a brown object in the bed of the pickup, and began to walk away. Officer Crossen instructed the driver, later identified as Mr. Guhr, to return to his vehicle, but Mr. Guhr responded, "[N]o." The officer again instructed Mr. Guhr to return to his vehicle and Mr. Guhr responded that he would not. Officer Crossen advised Mr. Guhr that he was under arrest and told him to return to his vehicle. When Mr. Guhr said that he was not going to do so, Officer Crossen grabbed his right arm and walked with him back to the pickup. Officer Crossen then placed him in handcuffs.
At that time, Officer Crossen could smell a moderate odor of intoxicants coming from Mr. Guhr. Officer Crossen asked Mr. Guhr how much he had had to drink, and Mr. Guhr responded that he had consumed two drinks. The officer then placed Mr. Guhr in his patrol car and radioed for assistance. Officer Crossen next went to Mr. Guhr's pickup and retrieved, as evidence, the objects that Mr. Guhr had placed in the bed of the vehicle. The objects were two bottles of tequila. Officer Crossen placed Mr. Guhr under arrest for driving while intoxicated and transported him to the Morgan County jail.
At the jail, Officer Crossen asked Mr. Guhr to perform three field sobriety tests. When the tests were completed, Officer Crossen read Mr. Guhr the Miranda rights and informed him of the Missouri Implied Consent Law. When he asked Mr. Guhr for consent to provide a sample of his breath, Mr. Guhr refused. Officer Crossen informed Mr. Guhr that if he refused to take the breath test, his driver's license would be revoked for one year. Mr. Guhr stated that he knew that. Officer Crossen set up the DataMaster, following the Department of Health standards, and ran a refusal ticket. Although he refused the breath test, Mr. Guhr agreed to answer most of the questions on the Alcohol Influence Report. On the checklist on the Alcohol Influence Report, Officer Crossen marked that Mr. Guhr's breath smelled moderately of alcohol, his balance and walking exhibited swaying, his attitude was combative and uncooperative, and his ability to follow directions was poor.
Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
The director subsequently notified Mr. Guhr that his driver's license would be revoked for one year, as a consequence of his refusal to submit to a chemical test, in violation of section 577.041. Mr. Guhr filed a petition to review the action of the director, as authorized by section 577.041.4. A hearing was held on Mr. Guhr's petition, on June 10, 2005. The only evidence presented by the director was a certified copy of Mr. Guhr's driving record. His driving record included the Alcohol Influence Report and an attached Supplementary Report, in a narrative form, prepared by Officer Crossen the same day he arrested Mr. Guhr. Mr. Guhr's counsel advised the trial court that he had no evidence to present. After a recess, the court stated on the record that:
[T]here was no probable cause to arrest Mr. Guhr for operating a motor vehicle in an intoxicated condition. No probable cause established for arresting him for that prior to his arrest. All evidence concerning his intoxication was determined post-arrest. Therefore, it is the Court's ruling that there was no establishment of probable cause prior to or pre-arrest. And therefore the Court finds the evidence — or, the facts in favor of Mr. Guhr.
Thereafter, a formal judgment entry was filed. The judgment stated, "As the Court finds that the arresting office had no probable cause to arrest [Mr. Guhr] for driving while intoxicated, the Court finds in favor of [Mr. Guhr]." The judgment directed the director to reinstate the driving privilege of Mr. Guhr. The director appeals.
No Error in Trial Court's Judgment
In her sole point on appeal, the director asserts that the circuit court erred in reinstating Mr. Guhr's driving privilege because its judgment that the arresting officer did not have reasonable grounds to believe that Mr. Guhr was in an intoxicated condition is a misapplication of the law and is against the weight of the evidence. Specifically, the director claims that the trial court utilized the initial arrest of Mr. Guhr as the time when the arresting office had to have reasonable grounds to believe that Mr. Guhr was driving while intoxicated, when the second arrest that was expressly for driving while intoxicated is the time to be considered. She further argues that there was sufficient evidence to show that, prior to the second arrest, the arresting officer had reasonable grounds to believe that Mr. Guhr was driving while intoxicated.
This court will affirm the judgment of the circuit court 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. Hinnah v. Dir. of Revenue , 77 S.W.3d 616, 620 (Mo. banc 2002). Under section 577.041.3, the director is required to revoke, for one year, the driver's license of a person arrested for driving while intoxicated for refusing, when requested by the arresting officer, to submit to a chemical test authorized by section 577.020. "If a person's license has been revoked because of the person's refusal to submit to a chemical test, such person may petition for a hearing before a circuit or associate circuit court in the county in which the arrest or stop occurred." Section 577.041.4.
Section 577.020.1 states, in part:
Any person who operates a motor vehicle upon the public highways of this state shall be deemed to have given consent to, subject to the provisions of sections 577.020 to 577.041, a chemical test or tests of the person's breath, blood, saliva or urine for the purpose of determining the alcohol or drug content of the person's blood. . . .
At a review of a license revocation hearing in a refusal to submit to a chemical test case, the director has the burden of demonstrating that the driver was arrested, the arresting officer had reasonable grounds to believe that the driver was driving while intoxicated or in a drugged condition, and that the driver refused to submit to an authorized chemical test. Hinnah , 77 S.W.3d at 620. "If the trial court finds that one or more of these circumstances did not take place, the trial court is required to order the director to reinstate the driving privileges pursuant to section 577.041.5." Storck v. Dir. of Revenue , 59 S.W.3d 545, 548 (Mo.App.E.D. 2001).
In this case, Mr. Guhr does not dispute that he was arrested or that he refused to submit to a chemical test. The only contested issue is whether the arresting officer had reasonable grounds to believe that Mr. Guhr was driving while intoxicated. "Reasonable grounds to arrest [a] driver for driving while intoxicated is virtually synonymous with probable cause to arrest [a] driver." Id. The determination of whether there is probable cause is made on the information known to the arresting officer prior to the arrest. Hinnah , 77 S.W.3d at 621.
"In a case submitted upon the written record, such as this case, deference to the trial court regarding credibility of witnesses is not warranted." Jarrell v. Dir. of Revenue , 41 S.W.3d 42, 44 (Mo.App.S.D. 2001). See also Kimberling N., Inc. v. Pope , 100 S.W.3d 863, 871 (Mo.App.S.D. 2003) ("While [an appellate court] give[s] due regard to the ability of the trial court to judge the credibility of witnesses, this rule of deference does not apply where . . . the facts derive from written documents or exhibits."). Nevertheless, "[i]n such instances, appellate courts defer to the facts — not witness credibility — as found by the trial court `in reviewing whether there is substantial evidence to support a judgment and determining whether the judgment is against the weight of the evidence.'" Jarrell , 41 S.W.3d at 46 (citation omitted). "[W]here facts essential to an element of a case are derived from non-live sources and are in conflict, appellate courts give deference to the trial court conclusions about those facts." Id.
At the hearing on Mr. Guhr's petition, in making a case for revocation of Mr. Guhr's driver's license, the director admitted into evidence a certified copy of Mr. Guhr's driving record, which included Officer Crossen's Alcohol Influence Report and his Supplementary Report. Neither the director nor Mr. Guhr presented any other evidence. Upon this record, the trial court found that Officer Crossen did not have probable cause to arrest Mr. Guhr for driving while intoxicated. The portion of Mr. Guhr's driving record that is relevant to a determination of whether Officer Crossen had probable cause to arrest Mr. Guhr for driving while intoxicated is the Alcohol Influence Report and, in particular, the Supplementary Report that contained Officer Crossen's narrative. Therefore, those documents will be examined to determine if the director presented sufficient evidence to establish that, prior to arresting Mr. Guhr, Officer Crossen had reasonable grounds to believe that Mr. Guhr was driving while intoxicated.
The Supplementary Report contained Officer Crossen's description of events as they occurred. According to the report, Officer Crossen observed Mr. Guhr driving without lights and in an unusual manner, by spinning his tires and pulling in and out of the bowling alley parking lot. After Mr. Guhr returned to the bowling alley parking lot, Officer Crossen approached his vehicle. Officer Crossen observed Mr. Guhr place a brown object into the truck bed and walk away from the vehicle. Officer Crossen instructed Mr. Guhr to return to the vehicle. Mr. Guhr refused to do so. Officer Crossen again instructed Mr. Guhr to return to his vehicle, but Mr. Guhr told Officer Crossen that he would not do so. Officer Crossen then told Mr. Guhr that he was under arrest and ordered him to return to his vehicle. Again, Mr. Guhr refused to do so. Officer Crossen took Mr. Guhr by the arm and walked him back to his vehicle. Officer Crossen then handcuffed Mr. Guhr. Officer Crossen described smelling a strong odor of an intoxicating beverage coming from Mr. Guhr at this time. Officer Crossen asked Mr. Guhr how much alcohol he had consumed that evening and Mr. Guhr admitted to consuming two drinks. Officer Crossen retrieved the objects that he observed Mr. Guhr put in the bed of his pickup, which were two bottles of tequila. Officer Crossen, then, placed Mr. Guhr under arrest for driving while intoxicated.
The director cites additional statements in the Alcohol Influence Report as evidence to be considered in determining whether she made a prima facie case. The additional evidence was that Officer Crossen marked on the Alcohol Influence Report checklist his observation that Mr. Guhr's eyes were glassy and that his balance and walking were swaying. These observations were not included in Officer Crossen's narrative. As a result, contrary to the director's assumption, it is not clear from the director's records whether these observations were made before or after Officer Crossen arrested Mr. Guhr for driving while intoxicated. Additionally, the director's records include conflicting statements as to whether Officer Crossen detected a "strong" or "moderate" odor of alcohol emanating from Mr. Guhr prior to the arrest.
As set forth above, "where facts essential to an element of a case are derived from non-live sources and are in conflict, appellate courts give deference to the trial court conclusions about those facts." Jarrell , 41 S.W.3d at 46. Addressing the second factual issue first, the trial court was called upon to determine whether Officer Crossen detected a "strong" or "moderate" odor of alcohol emanating from Mr. Guhr. On the Alcohol Influence Report checklist, Officer Crossen marked that the odor was "moderate." In contrast, in his narrative, he stated that he observed a "strong" odor of alcohol. This court considers the evidence in the light most favorable to the trial court's judgment, Hinnah , 77 S.W.3d at 621, and, in that light, considers that the trial court found that the odor of alcohol was "moderate." This court defers to the trial court's finding. Jarrell , 41 S.W.3d at 46-47 ("Since resolving witness credibility was not an option, the trial court had to choose between two conflicting written versions of what happened.").
The second factual issue is when Officer Crossen made the observations about Mr. Guhr's eyes, balance, and walking. On the Alcohol Influence Report checklist, Officer Crossen marked that Mr. Guhr's eyes were glassy and his balance and walking were swaying. The checklist could support two conclusions as to when these observations were made. The director reaches the conclusion that Officer Crossen made these observations before placing Mr. Guhr under arrest for driving while intoxicated. Because Officer Crossen did not state that he made these observations prior to the arrest in his chronological narrative of the events, however, the record would also support the conclusion that these observations occurred at a time after the arrest for driving while intoxicated, such as when Mr. Guhr was performing the field sobriety tests at the Morgan County Jail. The trial court was within its discretion to find that the evidence supported the second conclusion, and this court gives deference to the trial court's conclusions about the facts. Id. at 46.
This court must consider the resolution of these two factual issues in the light most favorable to the trial court's judgment, plus the remaining uncontroverted evidence, in determining whether the director presented sufficient evidence to make a prima facie case that Officer Crossen had reasonable grounds to believe that Mr. Guhr was driving while intoxicated at the time he was arrested for driving while intoxicated. The trial court found that the director did not. The director asserts, on appeal, that either the trial court mistakenly required Officer Crossen to have reasonable grounds to arrest for driving while intoxicated at the time Mr. Guhr was initially arrested or its ruling was against the weight of the evidence.
The record supports the director's position that Officer Crossen was required to have probable cause at the time of the second arrest, not the first. While Officer Crossen was required to have probable cause before arresting Mr. Guhr for driving while intoxicated, it was not necessary for Officer Crossen to have probable cause to arrest Mr. Guhr for driving while intoxicated prior to the initial arrest. "`Section 577.041 does not require the arresting officer to have reasonable grounds before he makes the initial stop. It is sufficient, if after the stop, the arresting officer observes sufficient indicia of intoxication to reasonably believe the driver was driving a motor vehicle while intoxicated.'" Dixon v. Dir. of Revenue , 118 S.W.3d 302, 306 (Mo.App.S.D. 2003) (citation omitted). "`[P]robable cause to arrest for an alcohol-related traffic violation which supports an administrative license suspension may be developed after the officer stops the motorist, regardless of whether the officer had probable cause for the stop.'" Id. (citation omitted). In this case, like Dixon , the record clearly shows that "the ` initial stop' was an arrest for acts other than DWI" and refutes any claim that Officer Crossen intended the first arrest of Mr. Guhr to be an arrest for driving while intoxicated. Id. If the basis for the trial court's judgment was that Officer Crossen lacked probable cause to arrest Mr. Guhr for driving while intoxicated at the time of his initial arrest, the trial court misapplied the law.
At the time of the second arrest, the uncontroverted evidence, plus the evidence in the light most favorable to the trial court's decision, was that Officer Crossen had observed Mr. Guhr operating his vehicle without lights and in an unusual manner and attempted to stop Mr. Guhr to investigate the matter. Mr. Guhr refused to cooperate and attempted to flee from Officer Crossen. Officer Crossen arrested Mr. Guhr in order to secure him, at which point Officer Crossen detected a moderate odor of alcohol coming from Mr. Guhr. Officer Crossen asked Mr. Guhr how much alcohol he had consumed that night and Mr. Guhr responded that he had consumed two drinks. Officer Crossen retrieved two bottles of tequila that Officer Crossen observed Mr. Guhr place in the bed of his truck. Officer Crossen then arrested Mr. Guhr for driving while intoxicated. Thus, the question is whether this evidence was sufficient to demonstrate that Officer Crossen had reasonable grounds to arrest Mr. Guhr.
The record does not indicate whether the bottles had been opened and, if so, how much tequila remained.
As stated above,"[r]easonable grounds to arrest [a] driver for driving while intoxicated is virtually synonymous with probable cause to arrest [a] driver." Storck , 59 S.W.3d at 548. Under the Fourth Amendment, appellate review of whether there is probable cause requires an examination of the events that occurred leading up to the stop or search, as "viewed from the standpoint of an objectively reasonable police officer." Ornelas v. United States , 517 U.S. 690, 696, 116 S.Ct. 1657, 1661-62, 134 L.Ed.2d 911 (1996). The U.S. Supreme Court has never, when reviewing a probable-cause determination, "expressly deferred to the trial court's determination." Id. at 697. The review is de novo because " de novo review tends to unify precedent and will come closer to providing law enforcement officers with a defined "`set of rules which, in most instances, makes it possible to reach a correct determination beforehand as to whether an invasion of privacy is justified in the interest of law enforcement.'"" Id. at 697-98 (citation omitted).
The Missouri Supreme Court has held that "[t]he Fourth Amendment provides the same guarantees against unreasonable searches and seizures as article I, section 15 of the Missouri Constitution. Thus, any analysis of search and seizure questions under the Fourth Amendment is identical to search and seizure questions arising under Missouri law." State v. Damask , 936 S.W.2d 565, 570 (Mo. banc 1996) (citation omitted).
This principle was followed by the Missouri Supreme Court in Hinnah. There, the Supreme Court held that "[i]f the evidence is uncontroverted or admitted so that the real issue is a legal one as to the legal effect of the evidence, then there is no need to defer to the trial court's judgment." 77 S.W.3d at 620. Only when the evidence is controverted is deference given to the trial court's determination. Id. Moreover, Hinnah held that "[p]robable cause to arrest exists when the arresting officer's knowledge of the particular facts and circumstances is sufficient to warrant a prudent person's belief that a suspect has committed an offense[,]" an objective standard. Id. at 621.
In the Missouri Supreme Court's recent opinion in York v. Director of Revenue , 186 S.W.3d 267 (Mo. banc 2006), however, the Court deferred to the trial court's discretion on the uncontroverted facts. In that case, the director revoked the motorist's driver's license based on a probable cause determination that he was driving while intoxicated. Id. at 269. The trial court reinstated the motorist's driving privileges finding the facts insufficient to demonstrate probable cause. Id. In affirming the trial court's judgment, the Supreme Court first recognized that the circuit court correctly found that the indicia of intoxication, including that the driver (1) smelled of alcohol, (2) had "watery, bloodshot and glassy" eyes, and (3) admitted to drinking one or two beers, was uncontroverted. Id. at 272. Although the Court found the evidence regarding the indicia of intoxication uncontroverted, the Court, nevertheless, concluded that "the trial court, in its discretion, was free to draw the conclusion that there was no probable cause based upon its assessment of th[e] evidence and the officer's own equivocation of the existence of probable cause." Id. (emphasis added).
The Court, in York , considered the subjective state of mind of the arresting officer as to whether there was probable cause, rather than the objective standard of a prudent person. In addition, the Court, in York , gave deference to the trial court's judgment even though considering uncontroverted evidence. Because this court is bound to follow the latest Supreme Court decision on this issue, this court applies the standard set forth in York. Ferrellgas, L.P. v. Williamson , 24 S.W.3d 171, 178 (Mo.App.W.D. 2000). Under the uncontroverted evidence in this case that, before the second arrest, Officer Crossen observed Mr. Guhr driving without lights and in an unusual manner, smelled a moderate odor of intoxicants emanating from Mr. Guhr, witnessed Mr. Guhr's uncooperative behavior and refusal to follow directions, and obtained Mr. Guhr's admission that he had been drinking, the "trial court, in its discretion, was free to draw the conclusion" that such evidence was insufficient to demonstrate probable cause to believe that Mr. Guhr was driving while intoxicated. York , 186 S.W.3d at 272. Following the Supreme Court's decision in York , this court defers to the trial court's finding. Id.
Accordingly, because the director failed to demonstrate that Officer Crossen had probable cause to arrest Mr. Guhr for driving while intoxicated, the director failed to make a prima facie case that Mr. Guhr was driving while intoxicated. Therefore, the judgment of the trial court reinstating Mr. Guhr's driver's license is affirmed.
Holliger, J., concurs.
Howard, J., concurs in separate concurring opinion
Concurring Opinion
I concur that the director's evidence failed to demonstrate probable cause to arrest Guhr for driving while intoxicated. I reach the same result whether or not we defer to the trial court's findings.
Judge Breckenridge is correct in her assessment that York seems to bestow deference on the trial court's findings even though based upon uncontroverted evidence. Clearly, the arresting officer in York proved to be a disaster on the stand. She forgot whether certain observations about York's walking, balance, and speech were made before or after the arrest and admitted improperly administering all field sobriety tests and the portable breath test. Id. at 270-72. When the dust settled, the trial court disregarded all of the officer's testimony except the uncontroverted evidence of an odor of alcohol, admission to drinking one or two beers, and watery, bloodshot, and glassy eyes. Id. The trial court then found these factors insufficient to support probable cause. The York Court determined that the trial court, in its discretion, was free to assess the evidence and the officer's equivocation on the issue to find no probable cause. Clearly this was not a de novo review.
York v. Dir. of Revenue, 186 S.W.3d 267, 272 (Mo. banc 2006).
My reading of York indicates the trial court did not find the uncontroverted evidence to lack credibility but, instead, accepted the evidence and then found it insufficient to support probable cause. 186 S.W.3d at 270-72.
Judge Breckenridge also aptly points to Ornelas v. United States, 517 U.S. 690 (1996) wherein the Supreme Court explicitly embraced de novo review as the applicable standard in reviewing determinations of probable cause. Id. at 699. However, the United States Supreme Court has not adopted as rigid an application of de novo review as the Missouri Supreme Court. The Ornelas Court held that, while determinations of probable cause and reasonable suspicion are "as a general matter" reviewed de novo, a reviewing court should give "due weight to inferences drawn" by trial judges from the facts of a case because "background facts, [distinctive features and events of the community], though rarely the subject of explicit findings, inform the judge's assessment of the historical facts" of the case. Id. at 699-700. Likewise, because of an officer's background and experience, or perhaps lack thereof, "[a]n appeals court should give due weight to a trial court's finding" of an officer's credibility and if the officer's inferences were reasonable. Id. Perhaps the York Court was employing, though not overtly, a measure of this reasoning to put its stamp of approval on the common sense decision of the trial court.
There are at least several possibilities as to the practical effect of York. Perhaps we no longer review de novo a trial court's determination of probable cause in driver's license forfeiture cases.
Or, when contested evidence has been found not credible, we defer to the trial court's discretion to weigh uncontroverted evidence. Or, we no longer review de novo when there is uncontroverted evidence regarding probable cause but the officer equivocates on the issue. Then again, York may just be a case, with unusual facts, bearing no intent to reshape our standard of review. At any rate, whether reviewed de novo or accepting that the trial court, in its discretion, was free to find no probable cause, the result in the case at hand is the same.
The officer testified that evidence of a strong odor of alcohol, and watery, bloodshot and glassy eyes was not enough to demonstrate probable cause. Of course, to give her opinion credence would be contrary to the employment of an objective standard during de novo review.
With persistent, although admittedly not exhaustive, study, I have been unable to locate a case affirming a finding of probable cause in the absence of evidence of actual signs of intoxication. Common examples are watery, bloodshot, or glassy eyes, unsteady balance, slurring of speech, stumbling, swaying, weaving, and running off the road.
In the case at hand, the Director of Revenue presented no competent evidence of actual signs of intoxication. Guhr was stopped because he was "peeling out." While possibly illegal, and a reason to be stopped, it is no more a sign of intoxication than speeding or failing to use a turn-signal. Three other factors to weigh in determining probable cause were Guhr's uncooperativeness, a moderate odor of alcohol, and an admission of drinking two beers. Though clearly signs of alcohol consumption (legal), none of these factors are signs of intoxication (illegal when driving). While relevant in the determination of intoxication, these factors fall somewhere in the gulf between reasonable suspicion and probable cause.
Indeed, in York it was determined that a strong odor of alcohol and an admission of drinking one or two beers was insufficient to supply probable cause even when coupled with watery, bloodshot, and glassy eyes — actual, objective signs of intoxication.
Probable cause exists when facts and circumstances are sufficient to warrant a prudent person's belief that an offense has been committed. Hinnah v. Dir. of Revenue, 77 S.W.3d 616, 621 (Mo. banc 2002).
Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause.
Alabama v. White, 496 U.S. 325, 330 (1990). The factors presented in this case fall short of allowing a prudent person to form a belief of intoxication. Undoubtedly the four factors presented here could raise a mere suspicion of intoxication, but that falls far short of probable cause.
It is important not to blur the distinction between reasonable suspicion and probable cause nor the distinction between actual signs of intoxication and behavior that raises suspicion of intoxication. Observations of facts that are not bona fide signs of intoxication, while sufficient to raise suspicion and encourage hunches and educated guesses, lack the reliability upon which to base a reasonable and prudent belief of intoxication. Otherwise, a speeding violation coupled with the smell of alcohol and a surly attitude would constitute probable cause to believe someone is intoxicated. I concur in affirming the trial court's judgment.