Opinion
No. 26339
September 2, 2005
Appeal from the Circuit Court of Crawford County, Honorable J. Kent Howald, Associate Circuit Judge.
Jeremiah W. (Jay) Nixon, Cheryl Caponegro Nield, Attorney for Appellant.
Carl M. Ward, Attorney for Respondent.
The Director of Revenue appeals a judgment setting aside the suspension of Ryan K. York's driving privileges. Following his arrest for driving while intoxicated, York's driving privileges were suspended pursuant to section 302.505. York requested an administrative hearing as permitted by section 302.530.1, and the hearing commission upheld the suspension. He then sought a trial de novo in the Circuit Court of Crawford County as permitted by section 302.535.1. The circuit court entered judgment setting aside the suspension and ordering the Director to reinstate petitioner's driving privileges. We reverse and remand for a new trial.
All statutory references are to RSMo 2000, unless otherwise indicated.
The evidence in the light most favorable to the judgment indicates that Missouri State Highway Patrol Trooper Rhonda Shanika came into contact with York when he pulled into a highway patrol sobriety checkpoint taking place on Missouri Highway 19. There was nothing in his driving that precipitated the stop, nor did he commit any traffic violations; she spent a total of three minutes with York prior to placing him under arrest. Trooper Shanika testified that York made no attempt to avoid the checkpoint and he produced his license and insurance card with no difficulty. She claimed that when she came into contact with him, she detected a strong odor of alcohol and she noticed that his eyes were watery, bloodshot, and glassy. She further testified that because she could not tell if York was intoxicated by smelling his breath or observing his eyes, she needed York to perform the field sobriety tests to help develop probable cause for a possible arrest. Trooper Shanika asked York to perform the horizontal gaze nystagmus (HGN) test, the walk-and-turn test, and a one-leg stand test, as well as a portable breath test (PBT).
Trooper Shanika admitted that she did not perform the HGN test correctly and the court excluded all evidence concerning the HGN test. Trooper Shanika testified that York swayed during the administration of the walk-and-turn and one-leg stand tests; however, she admitted that she improperly administered both of the tests. Trooper Shanika did testify that York was swaying and wobbling, or stumbling as he walked and he had trouble making turns. She stated that she could not recall much of the encounter with York and could not recall whether she noticed that he had trouble walking prior to placing him under arrest. She testified that, prior to arresting York, she did not have any independent recollection of whether he swayed while balancing, swayed while walking, swayed while turning, wobbled while balancing, stumbled while walking or staggered while walking. Trooper Shanika asked York whether he had been drinking and he replied that he had consumed one or two beers, but she could not recall if she asked that question before or after York's arrest.
Trooper Shanika further testified that York's speech was slurred; however, she admitted that she could not recall whether York slurred his words prior to the arrest or after the arrest and could not recall any of her conversation with York. Trooper Shanika testified that the operating guidelines for the administration of the PBT require a 15- to 20-minute observation period prior to the administration of the test, but here, she admitted to observing York for only three minutes prior to arresting him and that she did not follow the test guidelines in this case. Although the trial court overruled York's initial objection to the admission of the results of the PBT test, it subsequently disallowed the results of the PBT. The court further excluded evidence offered by York of chapter 8 of the NHTSA guidelines, which purportedly supported a conclusion that the PBT test was given improperly; however, the Director objected on grounds of relevance in that the test was excluded. The following conversation then took place:
[Director's Counsel]: If the Court would otherwise like a copy for its own personal edification, I think [York's counsel] or I, either one, could provide you with one.
[York's Counsel]: Yeah, we could cite it as a scholarly publication, I would imagine.
The Court: If you want to do that, and attach it to your — any brief or legal memorandum you want.
The trial court entered a judgment for York ordering the Director to remove the administrative suspension from York's driving record and reinstate York's driving privileges. The court concluded that the Director failed to meet its burden of proof on the issue of whether the officer had probable cause to arrest York for driving while intoxicated existed at the time of arrest.
The court supported its conclusion with several findings of fact. The court found that Trooper Shanika improperly administered the walk-and-turn, one-leg stand, and HGN tests, as well as the PBT. She admitted that she failed to administer the field sobriety tests as she had been trained to do, the court explained, and she admitted that her failure seriously compromised the validity of each of the tests. The court further found that a reasonably prudent, cautious officer should not and would not rely upon the results of improperly administered field sobriety tests in making a probable cause determination.
The court also specifically found that Trooper Shanika's testimony regarding the existence of certain facts supporting probable cause was not credible. The court stated that to determine whether Trooper Shanika had probable cause to arrest York, the court could only consider facts known by the officer at the time of arrest. The court found that the Director did not present sufficient evidence to establish that any of the general observations Trooper Shanika made concerning York's balance, walking, turning, and speech were made prior to York's arrest. The court could not determine whether York slurred words or mumbled prior to the arrest because Trooper Shanika could not recall whether she heard slurred words or mumbling prior to the arrest.
Likewise, the court found that it could not determine whether York swayed while balancing, walking or turning; stumbled while walking; or wobbled while balancing; or staggered while walking or turning prior to the arrest because Trooper Shanika could not recall whether York exhibited any of these balance problems prior to the arrest. The court also found that Trooper Shanika spent less than three minutes attempting to administer four field sobriety tests to York. Because Trooper Shanika only spent this limited time with the petitioner prior to the arrest, could not recall when she made her observations regarding the petitioner, and improperly administered the field sobriety tests, the court found that her testimony regarding these aspects of the probable cause determination was not credible.
The court then concluded that the remaining uncontroverted indicia of intoxication, including the odor of intoxicants on York's breath and the fact that his eyes were watery, bloodshot, and glassy, were not sufficient to support probable cause to arrest. The court noted that the Director did not present any evidence of erratic or bad driving and that York was able to produce his license without any difficulty.
The court compared the present case to Hinnah v. Dir. of Revenue , 77 S.W.3d 616 (Mo. banc 2002). In Hinnah , a driver struck a concrete barrier and then fell asleep in his vehicle. Id. at 619. When an officer awakened him, the driver admitted to falling asleep at the wheel, smelled of alcohol, had bloodshot, watery, and glassy eyes, and used the door of the car to maintain his balance when he exited the vehicle. Id. at 618-19. The Missouri Supreme Court found that the trial court could have reasonably concluded upon those facts that probable cause to arrest did not exist. Id. at 622. Thus, the trial court concluded that the facts of the present case were not sufficient to support probable cause. The Director appeals this judgment.
In its sole point, the Director claims,
that the trooper had probable cause to arrest York for driving while intoxicated based on York's strong odor of alcohol, his watery, glassy and bloodshot eyes, his slurred speech, his admission of drinking one or two beers, his swaying and difficulty walking, and his result of .08 or greater on a PBT; the Director need not lay a common law foundation for admission of the PBT result; and York presented no evidence to contradict or otherwise rebut the Director's prima facie case.
Director's point relied on does not comply with Rule 84.04, in that it presents multifarious claims — it claims the judgment is not supported by substantial evidence, but also appears to challenge an evidentiary ruling regarding the admission of the PBT results, and perhaps raises a claim that York failed in his burden of production assuming that the director made a prima facie case. A point relied on that combines allegations of error not related to a single issue violates Rule 84.04. Martin v. Reed , 147 S.W.3d 860, 863 (Mo.App.S.D. 2004). Improper points relied on, including multifarious points, preserve nothing for appellate review. Id.
We note the court made an alternative ruling on the weight to be given the PBT if it was deemed admissible but the Director does not address the alternative ruling. We are addressing the second issue to assume that the PBT was excluded by the trial court. As to the third prong, the Director's brief has but one paragraph in its analysis of its prima facie case. Because of our decision on the Director's second point, we decline to review the third prong.
One of the problems with addressing multiple allegations of error is that each of these allegations involves a different standard of review as well. See Eskew v. Director of Revenue , 17 S.W.3d 159, 160 (Mo.App. E.D. 2000) (holding that the judgment will be upheld unless it is not supported by substantial evidence, unless it is against the weight of the evidence, or unless it erroneously declares or applies the law); Thurmond v. Director of Revenue , 759 S.W.2d 898, 899 (Mo.App.E.D. 1988) (holding that a trial court's decision to admit or exclude evidence is reviewed for an abuse of discretion); and Verdoorn v. Director of Revenue , 119 S.W.3d 543, 546 (Mo. banc 2003) (describing the difference between the burden of proof and the burden of production). Although we would be justified in dismissing the point as written, we have concluded that the Director adequately addressed two of the issues in its argument and York was able to respond to those two arguments. The first issue is whether there was substantial evidence to support the judgment or whether the judgment was contrary to the weight of the evidence and the second issue is whether the PBT was properly excluded.
In order for the Director to revoke or suspend driving privileges for an alcohol-related offense, the Director must prove (1) the driver was arrested upon probable cause for violating an alcohol-related offense; and (2) the driver's blood alcohol concentration exceeded the legal limit. Section 302.535.1; Verdoorn at 545. At issue is the first prong and we shall address the trial court's finding that the Director had not met her burden of proof on the issue of whether the driver was arrested upon probable cause.
In determining whether sufficient evidence supports the trial court's judgment on appeal, the trial court is presumed to be correct and shall be affirmed under any reasonable theory supported by the evidence. Jarrell v. Director of Revenue , 41 S.W.3d 42, 46 (Mo.App.S.D. 2001). Appellate courts view the evidence in the light most favorable to the judgment. Thurmond , 759 S.W.2d at 899. Furthermore, decisions as to the credibility of witnesses are for the trial court and we must defer to his findings and conclusions. Hawk v. Director of Revenue , 943 S.W.2d 18, 21 (Mo.App.S.D. 1997). Where a trial court makes a finding that it does not find the testimony of a police officer to be credible in a driver's license case, the appellate court must defer to the trial court's prerogative to determine credibility. Id. at 22. We are not, however, required to give deference to the trial court's findings when the evidence is uncontroverted and the case is virtually one of admitting the facts or when the evidence is not in conflict. Marsey v. Director of Revenue , 19 S.W.3d 176, 177 (Mo.App.E.D. 2000).
The trial court made specific credibility findings regarding the officer's testimony. The court made those findings on the basis of testimony that the officer had given previously, under oath, and at the trial court hearing. Where a trial court makes a specific finding that it did not believe the arresting officer's testimony in a driver's license case, the appellate court must defer to the trial court's prerogative to determine credibility. Thurmond , 759 S.W.2d at 899. Where there is substantial evidence that field sobriety tests were improperly administered by the arresting officer, it is acceptable that a trial court may disregard the officer's testimony regarding the test results. Brown v. Director of Revenue , 85 S.W.3d 1, 4 (Mo. banc 2002).
Probable cause for arrest exists when an officer possesses facts which would justify a person of reasonable caution to believe that an offense has been committed or is being committed and that the individual to be arrested committed it. Brown , 85 S.W.3d at 4. We defer to the trial court's assessment that none of the field sobriety tests were given properly and could be properly disregarded. What is left of the Director's case, when all the controverted facts are found against it by the trial court, are the "uncontroverted" facts of a strong odor of alcohol and York's watery, glassy, and bloodshot eyes. In Hinnah , our supreme court rejected nearly identical claims when an officer testified "that he observed Hinnah alone inside a truck with its engine running, parked alongside the interstate, that he had a strong odor of alcohol on his breath, had watery, glassy, bloodshot eyes, had difficulty maintaining his balance, and that he admitted to driving the vehicle, striking a concrete barrier and flattening the tire." Id. at 621. Through cross-examination, Hinnah elicited testimony that the officer "could not determine the number, recency, quantity or quality of that alcohol and that he could not determine whether Hinnah was intoxicated from it." Id. He also testified that "Hinnah's bloodshot eyes could not lead him to the conclusion that Hinnah was intoxicated." Id. Hinnah is controlling precedent. As stated in Hinnah , "[t]he trial court had evidence to support a finding of probable cause, but was free as well to draw the conclusion that there was no probable cause. Either conclusion was sustainable under the record. . . ." Id. at 622. In view of our standard of review and the express credibility findings of the court, we defer to the judgment of the trial court. If the PBT was properly excluded, then there was sufficient evidence to support the trial court's determination regarding probable cause.
As to what appears to be the second issue, that the trial court improperly excluded the results of the PBT based upon an objection that a foundation was required for the admission of the test results in order to comport with due process, we reach a different result. Section 577.021, provides that:
Any state, county or municipal law enforcement officer who has the power of arrest for violations of section 577.010 or 577.012 and who is certified pursuant to chapter 590, RSMo, may, prior to arrest, administer a chemical test to any person suspected of operating a motor vehicle in violation of section 577.010 or 577.012. A test administered pursuant to this section shall be admissible as evidence of probable cause to arrest and as exculpatory evidence, but shall not be admissible as evidence of blood alcohol content. The provisions of section 577.020 shall not apply to a test administered prior to arrest pursuant to this section.
Thus, if Shanika was a law enforcement officer who had the power of arrest for violations of section 577.010 or 577.012 and was certified pursuant to chapter 590, then the PBT was admissible as evidence. The exclusion of this evidence was prejudicial since, as we have already decided, the remaining evidence adduced by the State was insufficient to establish a prima facie case. Finding the trial court abused its discretion in refusing the admission of the PBT and that the exclusion of the test was prejudicial, the judgment is reversed. Johnson v. State , 58 S.W.3d 496, 499 (Mo. banc 2001). The case is remanded for further proceedings.
After deciding the PBT was inadmissible, the trial court also included an alternative finding in its judgment that the PBT result was inaccurate and, therefore, not credible. The trial court's conclusion that the PBT result was inaccurate was based upon statements in the NHTSA guidelines, which had been offered by York and excluded from evidence. Without proper evidentiary support, the trial court's credibility determination concerning the PBT result cannot prevent a remand in the case at bar. We use the word "proper" quite purposefully. By holding that the trial court's alternative credibility determination lacked evidentiary support — since it was based on matters the trial court excluded — we do not mean to imply the NHTSA guidelines should have been admitted or would have provided "proper" evidentiary support for the trial court's credibility determination. See section 577.021. The parties and the trial court will be free to approach this issue anew upon remand.
Bates, C.J., and Garrison, P.J., concurring.