Opinion
No. WD 61535
June 30, 2003
Appeal from the Circuit Court of Platte County, Missouri, The Honorable Daniel M. Czamanske, Judge.
Jeffrey S. Eastman, Gladstone, MO, for Respondent.
Jeremiah W. (Jay) Nixon, Attorney General, Matthew Briesacher, Assistant Attorney General, Jefferson City, MO, for Appellant.
Before Newton, P.J., and Ulrich and Smith, JJ.
The Director of Revenue (Director) appeals the judgment of the Circuit Court of Platte County reinstating the driver's license of the respondent, Kenneth S. Smither, following a revocation review hearing conducted in accordance with §§ 577.041.4, .5. The respondent's license had been revoked by the Director for a period of one year, pursuant to § 577.041.3, for his refusal to submit to a chemical test of his blood-alcohol content (BAC), as authorized by § 577.020, after being involved in a one-car accident in Platte County, Missouri.
All statutory references are to RSMo 2000, unless otherwise indicated.
In her sole point on appeal, the Director claims that the trial court erred in reinstating the respondent's driver's license based on its finding that the evidence was insufficient to make the requisite finding that the respondent had been arrested for suspicion of driving while intoxicated (DWI) because the court's finding was against the weight of the evidence and misapplied the law.
We affirm.
Facts
On the morning of December 23, 2001, Trooper Steve Salfrank of the Missouri State Highway Patrol was dispatched to a one-vehicle accident near the intersection of Interstate 29 and Highway 152 in Platte County, Missouri. Upon his arrival at the scene, Trooper Salfrank observed an overturned vehicle located on the shoulder of the interstate, which apparently had struck an embankment near the off-ramp to northbound I-29. Trooper Salfrank determined that the respondent, who was lying on the ground behind the overturned vehicle, was the driver. Trooper Salfrank stayed with the respondent until the paramedics arrived and placed him in an ambulance to be transported to the hospital. When Trooper Salfrank was speaking with the respondent, he noticed an odor of alcohol on his breath.
Although Trooper Salfrank did not immediately follow the ambulance to the hospital, he arrived at the hospital and made contact with the respondent a short time after the respondent arrived at the emergency room. At that time, upon questioning by the trooper, the respondent admitted that he had been drinking. The trooper then performed a horizontal gaze nystagmus (HGN) test, which resulted in findings consistent with intoxication. Based upon the respondent's admission of drinking and the results of the HGN test, the trooper determined that he was intoxicated and advised him that he was under arrest for DWI.
The trooper read the respondent his Miranda rights and the Missouri Implied Consent Law warning, including his right to contact an attorney. Trooper Salfrank then requested that the respondent submit to a BAC test. The respondent advised the trooper that he wanted to contact an attorney. Hospital personnel contacted the respondent's parents and informed them that the respondent wanted them to call an attorney on his behalf. Trooper Salfrank waited approximately forty minutes for an attorney to call the respondent before repeating his request for him to submit to a BAC test. At that point, the respondent refused to take the test or answer any more of the trooper's questions. Trooper Salfrank then issued the respondent a notice from the Director that his privilege to operate a motor vehicle would be revoked for a period of one year for a refusal, pursuant to § 577.041.3. The trooper also issued the respondent a citation for DWI and for careless and imprudent driving.
On January 16, 2002, the respondent filed a petition for a revocation review hearing in the Circuit Court of Platte County alleging, inter alia, that he "was not lawfully or properly arrested." A revocation review hearing was held on May 2, 2002. At the hearing, the only witness who testified on behalf of the Director was Trooper Salfrank. The respondent offered no evidence. The trial court found that the Director failed to make a prima facie case for revocation in that the evidence was insufficient to find that the respondent was ever arrested. Accordingly, on May 20, 2002, the trial court entered its judgment ordering the Director to reinstate the respondent's driver's license.
This appeal followed.
Standard of Review
Our review in this case is the same as in any other judge-tried case and is governed by Murphy v. Carron , 536 S.W.2d 30, 32 (Mo. banc 1976). Cessor v. Dir. of Revenue , 71 S.W.3d 217, 219 (Mo.App. 2002). As such, we shall affirm the trial court's judgment 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. In reviewing the judgment, we will view the evidence and all reasonable inferences drawn therefrom in the light most favorable to the judgment and disregard all evidence and inferences to the contrary. Wright v. Fisher , 89 S.W.3d 548, 549 (Mo.App. 2002). An appellate court shall set aside a judgment on the basis that it is against the weight of the evidence only upon a firm belief that the judgment is wrong. Wilson v. Dir. of Revenue , 35 S.W.3d 923, 926 (Mo.App. 2001).
I.
In her sole point on appeal, the Director claims that the trial court erred in reinstating the respondent's driver's license, based on its finding that the evidence was insufficient to make the requisite finding that the respondent had been arrested for suspicion of DWI, because the court's finding was against the weight of the evidence and misapplied the law. We disagree.
Pursuant to § 577.041.4, "[i]f a person's license has been revoked because of the person's refusal to submit to a chemical test, [as provided in § 577.020,] such person may petition for a hearing before a circuit or associate circuit court in the county in which the arrest or stop occurred." At a § 577.041.4 hearing, the Director bears the burden of proving by a preponderance of the evidence all of the requisite elements for upholding the revocation. Roberts v. Wilson , 97 S.W.3d 487, 492 (Mo.App. 2002). In order to make a prima facie case for upholding a revocation for a refusal in a DWI case involving a driver twenty-one years of age or older, as in our case, the Director is required to show that: (1) the driver was arrested or stopped; (2) the arresting officer had reasonable grounds to believe the driver was DWI; and (3) the driver refused to submit to a chemical test, authorized by § 577.020. § 577.041.4; Orr v. Dir. of Revenue, State of Mo. , 54 S.W.3d 201, 202 (Mo.App. 2001). If the Director makes a prima facie case for revocation, the burden then shifts to the driver to rebut the case by a preponderance of the evidence. Roberts , 97 S.W.3d at 492.
While § 577.041.4(1) permits the Director to show an arrest or stop for DWI in order to revoke for a refusal, here, there is no dispute that the trooper did not stop the respondent's vehicle. Thus, to revoke, the Director was required to show an arrest. In that regard, the trial court, in reinstating the respondent's driver's license, pursuant to § 577.041.5, found on the record that the evidence did not support a finding of an arrest for DWI. The Director contends that based on the applicable law as to what constitutes an arrest for purposes of § 577.041.4(1), she introduced sufficient evidence through the testimony of Trooper Salfrank for the trial court to have found that the respondent was arrested for DWI.
As to what constitutes an "arrest," for purposes of § 577.041.4(1), we look to § 544.180. Saladino v. Dir. of Revenue , 88 S.W.3d 64, 68 (Mo.App. 2002). Section 544.180 reads:
An arrest is made by an actual restraint of the person of the defendant, or by his submission to the custody of the officer, under authority of a warrant or otherwise. The officer must inform the defendant by what authority he acts, and must also show the warrant if required.
Thus, "[a] proper arrest [for purposes of § 577.041.4(1)] requires either actual restraint or submission to the arresting officer's authority . . . [but] does not occur merely because the officer announces the fact." Saladino , 88 S.W.3d at 68. "Arrest is not effected, absent physical restraint, if the suspect does not yield to the law enforcement officer's show of authority." Callendar v. Dir. of Revenue , 44 S.W.3d 866, 869 (Mo.App. 2001) (citations omitted) .
The Director contends that the factual scenario in this case is substantially similar to the factual scenario in Saladino , in which this court found the evidence sufficient to establish an arrest for purposes of § 577.041.4(1). In Saladino , a police officer arrived at the scene of a one-vehicle accident and found the driver, Saladino, in the front seat semi-conscious. 88 S.W.3d at 67. After being removed from the vehicle, Saladino had trouble standing and speaking, and the officer detected a strong odor of alcohol on his breath. Id. Due to the terrain at the crash site and Saladino's physical condition, the officer did not administer any field sobriety tests, but did inform him that he was under arrest for DWI. Id. The medical personnel at the scene stabilized Saladino by strapping him to a backboard and fitting him with a C-collar before transporting him to the hospital. Id. After arriving at the hospital, the officer read him his Miranda rights and gave him the implied consent warning, although the officer never physically restrained him in any fashion. Id. at 68. Following Saladino's refusal to submit to a BAC test, the officer told him that he was "finished with him" and left without issuing him a summons. Id . at 67-68. Saladino was later notified by the Director that his driver's license was being revoked for a refusal. Id. at 68.
At his revocation review hearing, Saladino contended, inter alia, that the revocation of his driver's license could not stand because the Director had not shown that he was ever arrested for DWI, as required by § 577.041.4(1). Id. The trial court agreed and ordered the reinstatement of Saladino's license. The Director appealed to this court. Id. We reversed, finding that the evidence was sufficient to demonstrate that the driver had been arrested, focusing upon the evidence that, following the officer's announcement to the driver that he was under arrest, the officer did not handcuff the driver because the driver was already physically restrained and his injuries prevented him from leaving the hospital. Id. at 69. In holding as we did in Saladino , we relied on our previous decision in State v. Setter , 721 S.W.2d 11, 17 (Mo.App. 1986). Setter did not involve a revocation case for a refusal; rather, it involved a motion to suppress a BAC test in a DWI involuntary manslaughter case. However, one of the issues was whether the defendant was arrested.
In Setter , the defendant was involved in a traffic accident that resulted in a fatality. Id. at 12. Setter was injured in the accident and had to be transported to the hospital. Id. At the hospital, the officer, based on his observations, advised Setter that he was under arrest for DWI. Id. He also read him his Miranda rights and asked him to take a blood test to determine his BAC, which was ultimately done at the officer's direction. Id. at 12-13. Setter was subsequently charged with involuntary manslaughter. Id. at 13. Prior to trial, Setter moved to suppress the BAC result, alleging, inter alia, that he was never arrested such that the test result was unlawfully obtained. Id. At the suppression hearing, on the issue of whether he had arrested Setter, the police officer testified that he did not physically restrain Setter because of his physical condition but that, otherwise, he "would have been handcuffed and taken away to a local police station." Setter , 721 S.W.2d at 17. In finding sufficient evidence for a valid arrest, this court stated:
Under the facts and circumstances herein, it cannot be concluded, as suggested by respondent, that there was no valid arrest because respondent was not restrained, or because he did not submit to the officer's authority. The facts reveal that the officer placed respondent under arrest and read the Miranda warning. There was no need to physically restrain respondent because his injuries prevented him from leaving the hospital. When asked if respondent was free to leave, the officer testified that he would have placed respondent in handcuffs and taken him to jail. It must be concluded under all the facts and circumstances herein that a valid arrest did occur.
Id. In relying on Setter to find a valid arrest, the Saladino court opined: "Indeed, it was precisely because Mr. Saladino could not leave that [the officer] arrested him without handcuffing him." Saladino , 88 S.W.3d at 69.
As noted, supra, to constitute an arrest there must be an actual restraint of the defendant or submission by him or her to the authority of the arresting officer. In reading Saladino and Setter , it is clear that neither was decided against the defendant on the basis that he had voluntarily submitted to the custody or authority of the officer. Rather, this court recognized in both cases that actual restraint of the defendant by the officer would have occurred in conjunction with the officer's announcing that the defendant was under arrest, but because the defendant was, in effect, already restrained and could not leave the premises due to his injuries, it was unnecessary for the officer to further restrain the defendant in order to effectuate an arrest. In other words, this court recognized in Setter and Saladino that a factual situation, involving the officer's announcing that the defendant was under arrest coupled with the officer's intent to physically restrain the defendant, but no further restraint was needed to subdue the defendant due to his physical condition, constituted a constructive restraint of the defendant by the officer sufficient to establish an arrest. Such a factual situation is in contrast to the factual situation that existed in Callendar .
In Callendar , this court held that the Director did not make a prima facie case for revocation in that he failed to present sufficient evidence to establish that the driver, who had been restrained by the paramedics, but was never handcuffed by the officer, had been arrested. 44 S.W.3d at 869-70. In Callendar , this court found that there was no evidence that the defendant had voluntarily submitted to the authority of the police officer. Id. at 869. Likewise, the court found that there was no evidence that the defendant was ever physically restrained by the officer or that the officer ever intended to physically restrain the defendant. Id. at 869-70. In fact, the officer testified that he did not believe that he had placed the driver under arrest and that the driver was free to leave the hospital after she refused to take the blood alcohol test. Id. at 869. The Director argued that the acts of the paramedics in restraining the driver were sufficient to establish restraint by the arresting officer. The trial court rejected that argument in that there was no evidence to connect the acts of the paramedics in restraining the defendant with the acts of the alleged arresting police officer. Id. at 870. In that regard, the Callendar court stated: "The paramedics were not acting under [authority of a warrant or otherwise] and the record does not reflect any intent by the paramedics or [the officer] to effect an arrest of Respondent in that manner." Id .
Based on the foregoing analysis of Saladino , Setter , and Callendar , for the Director to avail herself here of our holding in Saladino , she had to produce evidence that Trooper Salfrank would have physically restrained the respondent had it not been for his disabling injuries. The mere fact the driver was physically unable to leave the premises was not enough. A detailed review of the record discloses that there was no evidence from which it could be reasonably inferred that Trooper Salfrank physically restrained or intended to physically restrain the respondent absent his physical condition. Hence, the trial court did not err in finding that the Director did not prove an arrest of the respondent based on actual or constructive physical restraint by the trooper. Thus, to show an arrest of the respondent to make a prima facie case for revocation, the Director had the burden of showing by substantial evidence that the respondent by his actions had submitted to the authority of Trooper Salfrank.
A person is deemed to have submitted to the custody or authority of a law enforcement officer sufficient to effectuate an arrest if after being advised of his or her arrest, he or she assents to the directives of the officer without attempting to leave the premises. State v. Nicholson , 839 S.W.2d 593, 596-97 (Mo.App. 1992). The evidence in our case was insufficient to demonstrate that the respondent voluntarily submitted to the authority of Trooper Salfrank.
Trooper Salfrank testified that he administered a HGN test while the respondent was lying in a bed in the hospital emergency room and that he did not administer any further tests due to the respondent's physical limitations, as a result of what the trooper classified as a serious accident. Trooper Salfrank further testified that after he had informed the respondent that he was under arrest for DWI, he read him his Miranda rights, advised him of the implied consent law, including his right to contact an attorney, and then asked whether he would submit to a BAC test. In response, the respondent advised the trooper that he wanted to contact an attorney. In that regard, the record reflects that the respondent's parents were called, requesting them to contact an attorney on the respondent's behalf. After waiting for forty minutes with no response from an attorney, the trooper once again requested that the respondent submit to a BAC test. The respondent refused and invoked his right to remain silent. The trooper then issued him citations for DWI and careless and imprudent driving and left.
It cannot be reasonably inferred from the trooper's testimony that the respondent was submitting to his authority to detain him in order to process him according to the implied consent law, as the Director contends. The Director's evidence established that given the respondent's condition he really had no choice as to whether to submit to the trooper's authority or attempt to leave, forcing the trooper to physically restrain him. The only reasonable inference is that the respondent was refusing to submit to the trooper's authority. Without any evidence establishing that the respondent was submitting to Trooper Salfrank's authority, the trial court did not err in finding that there was no arrest on which to predicate a revocation for a refusal and ordering the reinstatement of the respondent's driver's license. Callendar , 44 S.W.3d at 870.
Conclusion
The judgment of the trial court reinstating the driving privileges of the respondent is affirmed.
Newton, P.J., and Ulrich, J., concur.