Opinion
No. 26517
August 3, 2005
Appeal from the Circuit Court of Phelps County, Honorable Ralph J. Haslag, Associate Circuit Judge.
Jeremiah W. (Jay) Nixon, Atty. Gen.; James A. Chenault III, Special Asst. Atty. Gen. of Jefferson City, MO, for Appellant's.
Larry A. Reed of St. Louis, MO, for Respondent's.
The driving privileges of Nicholas Reed ("Reed") were administratively suspended by the Director of Revenue ("Director") in February, 2004 because Reed was found to have a blood alcohol level of .136% after he was arrested on charges of driving while intoxicated and careless and imprudent driving. Reed requested a trial de novo pursuant to § 302.535, and the trial court entered judgment in Reed's favor. After considering the undisputed facts, the trial court reinstated Reed's driving privileges because "the arrest of [Reed] was not valid under Missouri statutes." We reverse the trial court's judgment and remand the case for further proceedings.
All references to statutes are to RSMo (2000).
I. Statement of Facts and Procedural History
At 6:14 a.m. on December 20, 2003, Sergeant Mark Reynolds of the Missouri Highway Patrol ("Sgt. Reynolds") was eastbound on Becca Drive in Rolla, Missouri. Just south of the intersection of Becca Drive and Rolla Street, Sgt. Reynolds saw a 1999 Dodge Ram pickup truck "backed off into the ditch with its emergency flashers activated." The front half of the truck was blocking the southbound lane. The vehicle was unoccupied and appeared to have been there for some time because the engine compartment was cold, and much of the vehicle's surface was covered with frost.
Sgt. Reynolds contacted a Rolla wrecker service, C C Towing ("C C"), to remove the truck from the roadway. C C advised that it had just received a call from the vehicle's owner, who stated that he had "wrecked his truck somewhere on Rolla Street." The owner had asked C C to tow the vehicle to 1413 Commercial Drive in Rolla. At Sgt. Reynolds' request, the Rolla Police Department sent an officer to that address to pick up the vehicle's owner and return him to the scene.
At 6:30 a.m., a Rolla police officer arrived at the scene with Reed, who was the truck's owner. When Sgt. Reynolds asked Reed what happened, he said, "I meant to turn at Lanning Lane and go across but missed it. I was turning around and backed off here." This incident happened at approximately 3:00 a.m., and it took Reed two hours to walk home.
While Reed was speaking, Sgt. Reynolds smelled the odor of intoxicants about Reed's person. His eyes were bloodshot and glassy, and his speech was somewhat slurred. Reed denied that he had drunk any alcohol since backing his vehicle into the ditch, but he admitted he had consumed four or five beers between 11:00 p.m. and 1:00 a.m.
Sgt. Reynolds then administered a series of three field sobriety tests to Reed. He was unable to successfully complete any of the tests. Reed also submitted to a portable breathalyzer test. The result was positive, indicating a blood alcohol level greater than .08%. At 6:46 a.m., Reed was placed under arrest for driving while intoxicated and careless and imprudent driving.
Reed was transported to the Phelps County Sheriff's Department and advised of his Miranda rights and his rights under Missouri's implied consent law. He consented to give a breath test, which was conducted at 7:04 a.m. using a DataMaster machine. The evidence ticket showed Reed's blood alcohol content was .136%. Sgt. Reynolds served Reed with a notice that his driving privileges were suspended. He was released on $885 bond on charges of driving while intoxicated and careless and imprudent driving.
See Miranda v. Arizona , 384 U.S. 436 (1966); §§ 577.020-.041.
In March 2004, the Director upheld the suspension of Reed's driving privileges after an administrative hearing was held. Thereafter, Reed filed a timely petition for trial de novo in the Circuit Court of Phelps County, Missouri, and the Director filed an answer in due course. The final paragraph of the Director's answer alleged that "[Reed] was arrested upon probable cause on or about December 20, 2003, in Phelps County, Missouri, and that [Reed] was operating a motor vehicle in the State of Missouri with a blood alcohol content exceeding the limits in § 302.500-302.540 RSMo; in further support of said response, see attached Exhibit 'A'." Exhibit A contained 14 pages of records from the Missouri Drivers License Bureau ("License Bureau") that were properly certified pursuant to § 302.312. Because Exhibit A was attached to the Director's answer, the exhibit was a part of the Director's pleadings for all purposes. See Rule 55.12; HGS Homes, Inc. v. Kelly Residential Group, Inc. , 948 S.W.2d 251, 255 (Mo.App. 1997).
All references to rules are to the Missouri Court Rules (2005).
In June 2004, Reed filed a motion for judgment on the pleadings or alternative motion for summary judgment. The motion contained a section called "Statement of Undisputed Facts" that listed 17 paragraphs of factual statements. Although most of the facts in this section of Reed's motion were taken from the License Bureau's records attached to the Director's answer, paragraph 13 stated that "[a] copy of the traffic ticket for violation of 304.012, RSMo is attached to this Motion as Exhibit '1'." This traffic ticket, which charged Reed with careless and imprudent driving, was not mentioned anywhere in the parties' pleadings or included in Exhibit A as a part of the records attached to the Director's answer. In August 2004, the Director filed suggestions in opposition to Reed's motion. The Director's suggestions included 13 paragraphs of additional undisputed facts that she asked the judge to consider in ruling on the motion.
Reed's motion was taken up by the trial court in August 2004. At the beginning of the hearing, the following colloquy occurred among the court, Reed's attorney and the Director's attorney:
THE COURT: All right. I'll show all canons of judicial ethics have been complied with. Once again, this is summary judgment. And Mr. Garrabrant [Reed's attorney], I understand you're lead counsel, please advise me how you wish to proceed either with regard to the facts in issue or argument at this time.
MR. GARRABRANT: Judge, I think that the facts, as they pertain to the pertinent issues that we want to argue and show for this motion, are agreed to. The Director has filed suggestions in opposition to our motion, which the Court has seen today, and I have seen for the first time today. But I have no problems with those facts being before the Court as far as this motion is concerned. I think that the — as we discussed earlier off the record, the major issue is going to be compliance with Section 577.039. And that is whether the officer involved actually arrested the Petitioner within one and one-half hours of the alleged operation of a motor vehicle while intoxicated.
THE COURT: Okay. Would you agree, Mr. Cox [the Director's attorney], the statement of undisputed facts that are set forth in Plaintiff's motion? The Court can look at those facts as undisputed for purposes of making a ruling in this case?
MR. COX: Yes, Judge, and I'd ask that you look at our facts. I think they're pretty much the same, and our suggestions.
THE COURT: Okay. All right. Let's go directly then to the argument I'm allowing. . . .
Reed argued that his driving privileges should be reinstated because he was arrested without a warrant more than one and one-half hours after the claimed violation occurred. According to Reed, this made his arrest invalid pursuant to § 577.039. As a result of this illegal arrest, Reed contended Sgt. Reynolds lacked probable cause to arrest Reed, and it also rendered his blood alcohol test results inadmissible. In response, the Director argued that § 577.039 was inapplicable because Reed left the scene of an accident, and, in any event, the exclusionary rule does not apply in a civil action to suspend or revoke a person's driving privileges. The trial court ruled in Reed's favor and reinstated his driving privileges because "the arrest of [Reed] was not valid under Missouri statutes. The [Director] did not present any fact or legal authority that would avoid this conclusion." This appeal followed.
Director presents two points for decision. In Point I, the Director contends the judgment should be reversed because Reed was lawfully arrested and his breath test result was lawfully obtained. In Point II, she argues the trial court misapplied the law because it was irrelevant in this civil proceeding whether Reed was lawfully arrested pursuant to § 577.039. As Director's second point is dispositive, we limit our discussion to this issue.
II. Standard of Review
Although the trial court's judgment purported to grant Reed's motion for judgment on the pleadings, that is not what actually occurred. Rule 55.27(b) states:
The judgment stated that "[t]he Court finds that the Motion for Judgment on the Pleadings should be granted because there is no material issue of fact and the Plaintiff is entitled to judgment as a matter of law based on the face of the pleadings."
Motion for Judgment on the Pleadings. After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings. If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 74.04, and all parties shall be given reasonable opportunity to present all materials made pertinent to such a motion by Rule 74.04.
When Reed attached a copy of the careless and imprudent driving ticket as an exhibit to his motion, he presented matters outside the pleadings to the trial court. This exhibit was not excluded by the trial court because the judgment specifically states that "[n]o objections were made on any matter concerning this proceeding including the facts and exhibits presented by the parties." The court also placed the parties on notice that it was treating Reed's motion as a request for summary judgment, and the court permitted the Director to present the additional facts she wanted the court to consider in ruling on the motion. Therefore, despite the nomenclature used by the trial court in its judgment, we will review this case as an appeal from a summary judgment in Reed's favor. See Freeman v. Basso , 128 S.W.3d 138, 141 n. 3 (Mo.App. 2004); Kirkpatrick v. City of Glendale , 99 S.W.3d 57, 60 (Mo.App. 2003); Dent Phelps R-III School Dist. v. Hartford Fire Ins. Co. , 870 S.W.2d 915, 918 (Mo.App. 1994).
Both Reed and the Director agreed that the material facts presented for the trial court's consideration in deciding Reed's motion for summary judgment were undisputed. Therefore, the only issue for the trial court to decide was whether Reed was entitled to judgment as a matter of law. See Rule 74.04(c)(6). "We do not defer to the trial court's order granting summary judgment." Bumm v. Olde Ivy Development, LLC , 142 S.W.3d 895, 896-97 (Mo.App. 2004). Instead, we employ a de novo standard of review in assessing whether the trial court correctly determined the legal issues presented by the parties. City of Springfield v. Gee , 149 S.W.3d 609, 612 (Mo.App. 2004); Bland v. IMCO Recycling, Inc. , 122 S.W.3d 98, 102 (Mo.App. 2003). Thus, our task is to decide whether, as the party moving for summary judgment, Reed was entitled to judgment as a matter of law. ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp. , 854 S.W.2d 371, 380 (Mo. banc 1993) (the key to summary judgment is the undisputed right to judgment as a matter of law).
III. Discussion and Decision
The Department of Revenue is authorized to suspend the driver's license of any person "arrested upon probable cause to believe such person was driving a motor vehicle while the alcohol concentration in the person's blood, breath, or urine was eight-hundredths of one percent or more by weight. . . ." § 302.505.1. After an adverse decision from the Department of Revenue, a driver may file a petition for a trial de novo in circuit court. § 302.535.1; Verdoorn v. Director of Revenue , 119 S.W.3d 543, 545 (Mo. banc 2003). At the trial de novo, "the director must initially present evidence to establish probable cause for the arrest and the driver's blood alcohol level of [.08]% or greater. This evidence creates a presumption that the driver was intoxicated. The driver is then entitled to rebut the director's prima facie case with evidence that his blood alcohol content did not exceed the legal limit." Walker v. Director of Revenue , 137 S.W.3d 444, 446 (Mo. banc 2004).
Here, the uncontroverted facts before the trial court were sufficient to show that the Director could establish a prima facie case at the trial de novo. Probable cause to arrest a driver for an alcohol-related violation exists "when a police officer observes an unusual or illegal operation of a motor vehicle and observes indicia of intoxication upon coming into contact with the motorist." Brown v. Director of Revenue , 85 S.W.3d 1, 4 (Mo. banc 2002). Sgt. Reynolds' discovery of Reed's truck, which had been backed into a ditch so as to impede traffic and render the vehicle inoperable, certainly qualifies as the unusual operation of a motor vehicle. When Sgt. Reynolds came into contact with Reed, the officer observed indicia of intoxication because: (1) he smelled the odor of intoxicants about Reed's person; (2) Reed's eyes were bloodshot and glassy; (3) his speech was somewhat slurred; (4) he admitted consuming four or five beers between 11:00 p.m. and 1:00 a.m.; (5) he failed three field sobriety tests; and (6) the results of the portable breathalyzer test were positive, indicating a blood alcohol concentration greater than .08%. Based on this information, Sgt. Reynolds arrested Reed for driving while intoxicated. Thereafter, Reed consented to submit to a breathalyzer test, which showed his blood alcohol concentration was .136%. The foregoing evidence is sufficient to create a presumption that Reed was intoxicated.
For the purposes of the summary judgment hearing, Reed's counsel stipulated that Reed tested .136% blood alcohol concentration on the DataMaster machine.
As is evident from the judgment, however, the trial court reinstated Reed's driving privileges because the court concluded Reed's arrest was invalid. The trial court appears to have accepted Reed's argument that his arrest contravened the provisions of § 577.039 because he was not taken into custody within one and one-half hours after he backed his truck into the ditch. The trial court further concluded that Reed's invalid arrest rendered inadmissible all of the evidence necessary to establish the Director's prima facie case. In the Director's second point, she contends the trial court erred because, in this civil proceeding to suspend Reed's driving privileges, it is irrelevant whether he was lawfully arrested pursuant to § 577.039. We agree.
In addressing the issue presented by Director's second point, we assume, without so deciding, that Reed's arrest was invalid on the ground asserted below.
In a criminal prosecution for driving while intoxicated, an illegal arrest does not void the defendant's subsequent conviction. State v. Brewer , 861 S.W.2d 765, 768 (Mo.App. 1993). "The remedy for an illegal arrest is the suppression of evidence obtained as a result of the arrest." Id. Under the exclusionary rule, it is well-settled that "the fruits of an unlawful search or seizure are inadmissible and cannot be used against a defendant at trial." State v. Taber , 73 S.W.3d 699, 707 (Mo.App. 2002). "The exclusionary rule is a judicially-created means of deterring illegal searches and arrests by preventing the evidence collected by that method from being used at trial when the purpose of the case being prosecuted is to punish an offender." St. Pierre v. Director of Revenue , 39 S.W.3d 576, 579 (Mo.App. 2001). The exclusionary rule, however, only applies in criminal cases. In re Littleton , 719 S.W.2d 772, 775 n. 2 (Mo. banc 1986).
An action to suspend or revoke a person's driving privileges pursuant to § 302.505 is a civil action. Krieg v. Director of Revenue , 39 S.W.3d 574, 576 (Mo.App. 2001); Sterneker v. Director of Revenue , 3 S.W.3d 808, 810 (Mo.App. 1999); Sullins v. Director of Revenue , 893 S.W.2d 848, 850 (Mo.App. 1995). When a trial court judicially reviews the administrative suspension or revocation of a driver's license, "it is irrelevant whether the arrest was valid" because the Fourth Amendment's exclusionary rule does not apply in a civil proceeding. Tidwell v. Director of Revenue , 931 S.W.2d 488, 491-92 (Mo.App. 1996); see Kienzle v. Director of Revenue , 944 S.W.2d 326, 328 (Mo.App. 1997); Sullins , 893 S.W.2d at 850.
In a decision entirely consistent with the above-cited authorities, our Supreme Court held in Riche v. Director of Revenue , 987 S.W.2d 331 (Mo. banc 1999), that the exclusionary rule does not apply in a proceeding to suspend or revoke a person's driving privileges pursuant to § 302.505 because the social cost of doing so would be too great:
It is well-established that the exclusionary rule requires that evidence obtained in violation of the fourth amendment cannot be used in a criminal proceeding against the victim of an illegal search and seizure. The exclusionary rule was designed to deter unlawful police conduct. The rule applies in criminal prosecutions for driving while intoxicated.
. . . .
The exclusionary rule is a judicially created means of deterring illegal searches and seizures. As such, the rule does not "proscribe the introduction of illegally seized evidence in all proceedings or against all persons." Instead, the exclusionary rule applies only in contexts "where its remedial objectives are thought most efficaciously served." Because the exclusionary rule is prudential rather than constitutionally mandated, it will not be applied where its "substantial social costs" outweigh its deterrent benefits. . . .
When this Court applies the cost-benefit analysis in the context of section 302.505 proceedings, it becomes clear that applying the exclusionary rule would impose significant costs to society. Extending the exclusionary rule to section 302.505 proceedings would unnecessarily complicate and burden an administrative process designed to remove drunken drivers from Missouri's roads and highways as quickly as possible. In addition, application of the exclusionary rule would preclude consideration of probative, reliable evidence and would allow many drivers to remain on the road who would otherwise lose their licenses.
. . . In sum, any incremental deterrent effect that might be achieved by extending the rule to section 302.505 proceedings is uncertain at best and is outweighed by the benefit of using reliable evidence of blood alcohol content in license revocation and suspension proceedings even when that evidence is inadmissible in criminal proceedings.
Id. at 333-35 (citations omitted).
Because the exclusionary rule does not apply, evidence acquired after an invalid arrest is still admissible in a civil proceeding to suspend or revoke a person's license pursuant to § 302.505. See, e.g., Garriott v. Director of Revenue , 130 S.W.3d 613, 616 (Mo.App. 2004) (even if the initial stop was illegal, evidence of driver's refusal to be tested was admissible); Siehndel v. Russell-Fischer , 114 S.W.3d 449, 452 (Mo.App. 2003) (submission to officer's custody was sufficient to meet the Director's burden of establishing an arrest, even if the arrest was not legally valid); St. Pierre v. Director of Revenue , 39 S.W.3d 576, 580 (Mo.App. 2001) (assuming driver's arrest was illegal, all of the evidence collected as a result of the pursuit, stop and arrest was admissible in a civil license revocation proceeding); Peters v. Director of Revenue , 35 S.W.3d 891, 895 (Mo.App. 2001) (the evidence of driver's breath analysis test was admissible, regardless of whether his arrest was valid); Keaveny v. Director of Revenue , 962 S.W.2d 904, 906 (Mo.App. 1998) (the invalidity of driver's arrest did not preclude the Director from establishing the existence of probable cause for the arrest); Sullins v. Director of Revenue , 893 S.W.2d 848, 850 (Mo.App. 1995) (even if the stop by officers was illegal, evidence of the driver's arrest and refusal to submit to a breath test could be considered).
In the case at bar, the uncontroverted evidence presented to the trial court was sufficient to demonstrate that the Director would be able to make a prima facie case at the trial de novo. The trial court's decision to reinstate Reed's driving privileges appears to have been based on the erroneous legal conclusion that an invalid arrest rendered all of the Director's evidence inadmissible. Accordingly, the trial court erred in granting Reed's motion for summary judgment because he was not entitled to judgment as a matter of law. The trial court's judgment is reversed, and the case is remanded for further proceedings consistent with this opinion.
PARRISH, P.J. — Concurs.
BARNEY, J. — Concurs.