Opinion
No. ED 78860
October 30, 2001
Appeal from the Circuit Court of St. Louis County. Hon. Robert S. Cohen.
Jeremiah W. Nixon, David J. Hansen, 1530 Rax Court, 2nd Floor, Jefferson City, MO, 65109, for appellant.
Timothy F. Devereux, 201 S. Central, Suite 218, Clayton, MO, 63105, for respondent.
The Director of Revenue ("director") appeals from a judgment of the St. Louis County Circuit Court reinstating the driving privileges of Mark J. Hinnah ("Hinnah"). The director claims the trial court erred in finding that it failed to establish a prima facie case for revocation in that there was sufficient evidence to prove that 1) Hinnah was arrested; 2) the arresting officer had reasonable grounds to believe Hinnah was driving while intoxicated; and 3) Hinnah refused to submit to a breath test. We reverse and remand.
In the morning of January 1, 1999, a police officer observed a pickup truck pulled over and parked on the shoulder of Highway 40 with the engine still running. The police officer stopped and approached the vehicle. He observed Hinnah, the sole occupant, sleeping in the passenger seat. He woke Hinnah and asked him if he was okay. Hinnah said he was fine and that he was looking for the Chesterfield police station. The police officer smelled a very strong odor of an alcohol beverage from Hinnah. He also noticed that Hinnah's eyes were watery, glassy, and bloodshot. Hinnah then exited the truck using the door to maintain his balance, though he was never told he may not use the door. Police officer testified that Hinnah stated that while he was looking for the Chesterfield police station he became sleepy, so he pulled over on the shoulder to take a nap. Police officer then, after observing a flat front tire and damage to the rim of the truck, asked Hinnah if he had been involved in an accident. Hinnah stated he had fallen asleep and struck a concrete barrier about a half a mile back on the highway. Police officer then placed Hinnah under arrest for driving while intoxicated. Because of the extremely cold weather, snow, and the placement of the car on the shoulder of a busy highway, police officer drove Hinnah to the police station before he performed any field sobriety tests. At the station, police officer advised Hinnah of his Miranda rights and of the Missouri Implied Consent Law, and that he was under arrest for DWI. Police officer asked again if Hinnah was driving the truck, and this time he denied ever driving. Police officer requested Hinnah to take a breath test to determine the alcohol content of his blood. He informed Hinnah that if he refused the test his license would be immediately revoked for one year. Hinnah refused to take the test.
The Department of Revenue revoked Hinnah's license for one year. Hinnah then filed a petition for trial de novo by the circuit court. The court assigned the petition to a commissioner for a hearing. Both the director and Hinnah presented evidence at the trial. Hinnah did not testify. On his behalf, however, Keith Tomnitz was called to the stand. He testified that he and Hinnah received a call to go pick up Hinnah's brother from the Chesterfield police station. Keith testified that he drove himself and Hinnah towards the station to pick up Hinnah's brother. Keith testified he hit a pothole and then had a flat tire. Keith left Hinnah in the truck and started walking. Keith was picked up, found a phone, and called his brother Brian to pick him up. Once Brian retrieved Keith, they went back to the truck to change the tire and it was gone. Keith testified that Hinnah never drove the truck and that Hinnah did not have a strong odor of alcohol on his breath.
Keith's brother Brian also testified for Hinnah. He stated he received a call from his brother, Keith, on the day in question and went out to pick up his brother. He stated that his brother told him he was driving the vehicle and they hit a pothole. He drove Keith down the highway but did not see the truck.
The commissioner ruled in favor of Hinnah, finding that police officer did not have probable cause to arrest Hinnah for driving while intoxicated. Commissioner recommended that his driving privileges be reinstated. The circuit court adopted the commissioner's recommendation and entered a judgment ordering director to reinstate Hinnah's driving privileges. The trial court did not issue findings of fact or conclusions of law. The director now appeals.
Our review of the trial court's decision is controlled by Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.App. 1976). The judgment will 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.Id. At a hearing where a person's license has been revoked for refusal to submit to a breath test under section 577.041 RSMo 1994, the trial court shall determine only whether or not the person was arrested, whether or not the arresting officer had reasonable grounds to believe that the person was driving a motor vehicle while in an intoxicated condition, and whether or not the person refused to submit to a breath test. Section 577.041.4; Marsey v. Director of Revenue, 19 S.W.3d 176, 177 (Mo.App. 2000). If the director's evidence leading up to the time of arrest is uncontradicted, then the standard of review does not permit us to disregard the uncontradicted evidence that supports director's contention that all elements were proven. Myers v. Director of Revenue, 9 S.W.3d 25, 28 (Mo.App. 1999).
All further statutory references are to RSMo 1994 unless otherwise indicated.
In director's sole point on appeal, she contends the circuit court erred in reinstating Hinnah's driving privileges because it misinterpreted the law and its decision is against the weight of the evidence because director proved 1) that Hinnah was arrested; 2) the arresting officer had reasonable grounds to believe Hinnah was driving while intoxicated; and 3) Hinnah refused to submit to a breath test.
The court found the "arresting officer did not have probable cause to arrest Petitioner for driving while intoxicated or an alcohol related offense." Reasonable grounds and probable cause are virtually synonymous. Myers, 9 S.W.3d at 27. To determine whether there are reasonable grounds, the court must evaluate the situation from the viewpoint of a cautious, trained, and prudent police officer at the time of arrest. Id. A police officer may have reasonable grounds to arrest for driving while intoxicated even though the evidence of "actually driving" is founded upon circumstantial evidence. Pendergrass v. Director of Revenue, 4 S.W.3d 599, 601 (Mo. App 1999). Here, even though the police officer candidly admits that he did not actually see Hinnah driving the vehicle, he testified that Hinnah stated that while driving he had an accident a half mile back on the road and that he became sleepy and had to pull over to take a nap. "The uncontroverted testimony of a police officer that an individual admitted to driving a vehicle constitutes reasonable grounds to believe that the individual was driving." Id.
Hinnah, however, argues that his two witnesses at trial testified that Hinnah was not driving, and therefore, director's prima facie case is controverted. But for purposes of reviewing the trial court's finding that there was no probable cause to arrest Hinnah for driving while intoxicated, the witnesses' testimony is irrelevant. In "examining the existence of probable cause, courts are to consider the information possessed by the officer before the arrest and by reasonable inferences drawn therefrom." Duffy v. Director of Revenue, 966 S.W.2d 372, 380 (Mo.App. 1998) (emphasis added). "'Reasonable grounds' for an arrest, like probable cause, must be determined on the basis of facts known to the arresting officer at the time of the arrest, not on the basis of facts learned later." Howard v. McNeill, 716 S.W.2d 912, 915 (Mo.App. 1986). The court must look solely to the evidence from the perspective of a cautious, trained and prudent police officer at the time he made the arrest. Hawkins v. Director of Revenue, 7 S.W.3d 549, 551 (Mo.App. 1999).
Here, Hinnah never informed police officer as to the information supplied by Keith and Brian. At the time of arrest, Hinnah admitted driving the vehicle. Hinnah's denial that he was driving occurred after Hinnah had been arrested and taken to the police station. Consequently, the only facts before the officer at the time of arrest were Hinnah's admission to driving, admission to having an accident, admission to pulling over because he was sleepy and wanted a nap, his glassy, watery eyes, the strong odor of alcohol on his breath, and his inability to maintain balance while exiting the car. Therefore, because Hinnah did not testify and the only evidence presented as to information known to the officer prior to Hinnah's arrest was the uncontradicted testimony of the police officer, we find there were reasonable grounds to arrest Hinnah for driving while intoxicated. Accordingly, to the extent the trial court found that the arresting officer did not have probable cause to arrest Hinnah for driving while intoxicated, the trial court misapplied the law and its judgment is against the weight of the evidence.
But our inquiry does not end there. In this case, Hinnah presented evidence at trial, which if believed, would support a finding that he was not driving the vehicle. If a person whose license is revoked under section 577.041 produces evidence that he was not driving after the director proves a prima facie case, then the inquiry shifts to the issue of whether the person was in fact driving. Kinsman v. Director of Revenue, No. W.D. 58743, 2001 826039 * 2 (Mo.App. WD. July 24, 2001). The "revoked person is necessarily permitted to overcome the effect of the Director's initial evidence of reasonable grounds by coming forward with evidence showing that he or she was not in fact driving." Id. "It is not enough for the person who allegedly refused the breath test to simply argue that the Director did not prove he was driving." Id. The revoked person "cannot simply criticize the Director's evidence on the basis that it is not conclusive; he has a duty to present evidence that he was not driving if he wishes to shift the inquiry from the probable cause issue." Id.
Section 577.041 cites to and must be read in conjunction with section 577.020, the implied consent law. Section 577.020 states that "[a]ny 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 577.04l, a chemical test or tests of his breath, blood, saliva or urine. . . ." Section 577.020. Thus a person must have operated a motor vehicle to trigger the implied consent law, section 577.020 and the revocation for refusal law, section 577.041. A revoked person who wishes to challenge the applicability of the implied consent law based on his or her not driving the vehicle has an affirmative duty to plead and prove that proposition.
Consequently, since Hinnah presented evidence that he was not the driver of the car, the trial court was then required to determine as a matter of fact if he was the driver. The only finding in the form judgment used by the trial court was on the issue of probable cause. As a result, we are unable to determine from the judgment whether the trial court decided, as a matter of fact, on the conflicting evidence presented, whether Hinnah was the driver at the time in question. Accordingly, the case must be remanded for the purpose of making this factual finding which is necessary to a determination whether Hinnah's driver's license should be revoked for refusing to submit to a chemical test under section 577.041.
The judgment of the trial court is reversed and the cause is remanded to the trial court for further proceedings consistent with this opinion.
Richard B. Teitelman, P.J., concurs.
Gary M. Gaertner, J., concurs.