Civil Case Updates 2016- Present

Civil Cases (Director of Revenue):

Arresting Officer Not Needed

Ridgway v. Dir. of Revenue, 573 S.W.3d 129 (Mo. App. E.D. 2019)

After numerous attempts by both the Director and Petitioner in a Trial de’Novo neither side was able to serve a subpoena on the arresting officer who did not appear.   The Court of appeals declared that the Failure of the arresting officer to appear is not grounds to exclude Department of Revenue records, because the statutes provide those records are admissible if certified, and without further foundation because the evidence when presented on the record is uncontested, therefore, there is no credibility determination to receive deference.   The COA declared that the absence of a peace officer’s testimony is not reason to exclude from evidence contents of records admitted under Section 302.312.1 RSMo, is a misapplication of the law.  In making this determination, the court, relied on Thebeau v. Dir. of Revenue, State of Mo., 945 S.W.2d 674, 675–76 (Mo. App. E.D. 1997) which held that the Director’s exhibit “A” was admissible under statutory exceptions to hearsay and further that it was not objectionable based on on lack of an opportunity to confront or cross-examine. The problem with this holding is it fails to take into consideration the following from Melendez-Diaz

“Respondent asserts that we should find no Confrontation Clause violation in this case because petitioner had the ability to subpoena the analysts. But that power-whether pursuant to state law or the Compulsory Process Clause-is no substitute for the right of confrontation. Unlike the Confrontation Clause, those provisions are of no use to the defendant when the witness is unavailable or simply refuses to appear. See, e.g., Davis, 547 U.S., at 820, 126 S.Ct. 2266 (“[The witness] was subpoenaed, but she did not appear at … trial”). Converting the prosecution’s duty under the Confrontation Clause into the defendant’s privilege under state law or the Compulsory Process Clause shifts the consequences of adverse-witness no-shows from the State to the accused. More fundamentally, the Confrontation Clause imposes a burden on the prosecution to present its witnesses, not on the defendant to bring those adverse witnesses into court. Its value to the defendant is not replaced by a system in which the prosecution presents its evidence via ex parte’ affidavits and waits for the defendant to subpoena the affiants if he chooses.” I believe this argument would also hold in the civil context since such testimony may be used in criminal case

Contact with Attorney Must be Confidential

 Roesing v. Dir. of Revenue, 573 S.W.3d 634 (Mo. banc. 2019)

After being arrested for DWI and refusing to submit to breath test, the   DOR revoked his driving privileges for one year pursuant to 577.041.1. Rosing filed a PFR who sustained the revocation.  Roesing appealed based on the argument that his refusal was not voluntary and unequivocal under because law enforcement deprived him of his statutory right to counsel by both listening to and recording of his end of the conversation with his attorney.   The MO Supreme Court, in an issue of first impression, determined 577.041.1’s right “to attempt to contact an attorney” is violated when the driver successfully contacts an attorney, but is then denied the right to speak with the attorney privately.

The Court reasoned that Section 577.041.1’s purpose was “to provide the driver with a reasonable opportunity to contact an attorney to make an informed decision as to whether to submit to a chemical test.”(at 637 author’s emphasis added).”  The  Court further iterated that “Any refusal to take the test must be “voluntary and unequivocal.”  (Id. at 677Citing White v. Dir. of Revenue, 255 S.W.3d 571, 580 (Mo. App. 2008). Further, to truly to make an informed decision and a subsequent refusal to be to be “voluntary and unequivocal” the driver MUST be able to candidly disclose all necessary information to receive appropriate advice from the attorney and when he is not able to do so without the possibility that anything said  can be subsequently used by the prosecuting attorney any decision is and cannot be  “voluntary and unequivocal”  and is further not what the legislature intended.

Blood Alcohol Test Report Admissible Without Certification

Nix v. Dir. of Revenue, 573 S.W.3d 156 (Mo. App. W.D. 2019)

At a subsequent trial de novo pursuant to section 302.535, RSMo. Nix’s DL based upon his having a BAC of 0.200%. Nix objected to the admission of the breath test results on foundational grounds based on the Officer’s admitted failure to sign the certification on the Blood Alcohol Test Report form.  The trial court sustained the objection and excluded the breath test report and any testimony concerning the breath test results.  The Director appealed arguing a sole point that the officer’s signature on the Blood Alcohol Test Report form is not a foundational requirement to the admission of the blood alcohol test results because it is collateral to the proper administration of the test. In reaching its decision the COurt goes through the analysis that “To establish a foundation for admitting blood alcohol test results, the DOR must establish that the test was performed: (1) following approved techniques and methods of the division of health, (2) by an operator holding a valid permit, (3) on equipment and devices approved by the division.” (573 S.W.3d 156, 159). The Court further points out that Nix never alleged that the Officer administered the  breath test in a manner inconsistent with statutory or DHSS regulatory requirements, and Nix did not argue that the Officer’s failure to sign the certification contained on the Blood Alcohol Test Report affected the accuracy of the results. Based upon this analysis, the Court determined that the Officer’s failure to sign the certification on the Blood Alcohol Report was collateral to the performance of the breath test, did not impact the accuracy of the test results, and did not require the exclusion of the blood alcohol test results and as such, the trial court’s ruling was erroneous.

Director need not call the arresting officer as a witness to Show Refusal.

Collier v. Director of Revenue, 2020 WL 3421674, Mo. Ct. App. W.D. 2020)

Section 577.041, RSMo. Provides that if  a person under arrest refuses to submit to an officer’s request for a chemical test, for the Court to uphold the revocation the Director must show (1) the person was arrested or stopped, (2) the officer had reasonable grounds to believe that the person was driving a motor vehicle while in an intoxicated condition, and (3) the person refused to submit to a chemical test. Section 577.041. At issue is the Petitioner’s right to cross-examine a witness versus the State’s obligation pursuant to White v. Dir. of Revenue, 255 S.W.3d 571, 580 (Mo. App. 2008).  Collier argued that despite his failure to subpoena the arresting officer, the Director did not meet its burden of proving that Collier refused the test because he was not permitted to cross-examine the officer.   The COA in reaching its decision that section 302.312 allows the Director to submit its case on the record without any testimony of foundation relied on Doughty v. Dir. of Revenue, 387 S.W.3d 383 (Mo. banc 2013). In Doughtry the Missouri Supreme Court upheld the suspensions of both a father and son despite the Director’s failure to present the Officer for cross examination. In doing so both in the present case as well as in Doughtry, it appears that the Court ignores the dictate of  Melendez –Diaz v. Massachusetts,  557 U.S. 305, 324 (2009) When the burden is on the state/director to present its witnesses shifting the consequences of adverse-witness no-shows from the State to the accused is converting a duty of the State into the Petitioner’s privilege under state law is improper.  This begs the question, what should the diligent attorney do if the adverse-witness no-shows? The value set out in White that the Director prove every element of its case without presumption is that the Petitioner is not replaced by a system in which the State presents its evidence via ex’ parte affidavits and waits for the Petitioner to subpoena the affiants if he chooses. It is this author’s opinion that had the petitioner subpoenaed the Officer and the officer not shown the result of this case may have been different.  However, the dictates of Section 577.041.4 allow for this type of foundational avoidance.

Cerutti v. Director of Revenue, 2020 WL 3026414, Mo. Ct. App. S.D. 2020)

This appeal was taken by the Director after a trial de novo wherein the Court determined that while Cerutti blew a 0.125% BAC, based upon the totality of the circumstances there was not probable cause to arrest Petitioner for DWI.  The Court of

Appeals for the Southern District determined that the trial court misapplied the law and as such, reversed and remanded the trial court’s judgment with the direction to affirm the suspension of Cerutti’s driving privileges.  In citing White v. Director of Revenue, 321 S.W.3d 298, 307-08 (Mo. banc 2010), as standing for the proposition that while no deference is owed to the final probable cause determination, the Court should defer to the facts found by the trial court, applying the law anew to those facts. Id. at 310. The COA citing to Srader v. Director of Revenue, 525 S.W.3d 600, 603-04 (Mo.App. W.D. 2017), declares that:

Probable cause:

“will exist when a police officer observes unusual or illegal operation of a motor vehicle and observes indicia of intoxication on coming into contact with the motorist. Probable cause, for purposes of section 302.505, will exist when the surrounding facts and circumstances demonstrate to the senses of a reasonably prudent person that a particular offense has been or is being committed. The level of proof necessary to show probable cause under section 302.505 is substantially less than that required to establish guilt beyond a reasonable doubt. There is a vast gulf between the quantum of information necessary to establish probable cause and the quantum of evidence required to prove guilt beyond a reasonable doubt. The trial court must assess the facts by viewing the situation as it would have appeared to a prudent, cautious, and trained police officer.”

Srader v. Director of Revenue, 525 S.W.3d 600, 603-04 (Mo.App. W.D. 2017) (quoting White, 321 S.W.3d at 309 (internal quotations and citations omitted)).

In citing to Srader quoting White, it appears to this author that the Court forgot to finish reading the discussion in White that “probable cause determinations are to be reviewed de novo under an abuse of discretion standard and give deference to the inferences the trial court made from the historical facts, including the trial court’s credibility determinations.” White at 307. Going further, the White court, citing State v. Milliorn, 794 S.W.2d 181, 183 (Mo. banc 1990) declares:

The trial court is afforded the luxury of cool deliberation—an advantage generally unavailable to persons charged with actual enforcement of the law. Nevertheless, we review the trial court’s decision on appeal under an abuse of discretion standard. Only if the trial court’s judgment is clearly erroneous will an appellate court reverse. This standard of review gives appropriate deference to the trial court’s ability to weigh the credibility of the witnesses, and acknowledges the inability of an appellate court to determine credibility from the lifeless pages of a record. Thus, if the trial court’s ruling is plausible in light of the record viewed in its entirety, this Court may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.”

Id. at 183–84 (citations omitted)(author’s emphasis)

It appears that the Court also forgot that White also stands for the proposition that in satisfying its burden the Director is not to be given any presumption of validity, nor should the driver be required to present any evidence to rebut. That presumption is not supported by the general principles of law which are applicable to court-tried civil cases or by the language of sections 302.505 and 302.535. White at 306. 

Further, the Supreme Court declared that such a practice confuses the law and contributes to inconsistent decisions at the trial and appellate level and declared that “[T]o the extent that these cases or any other prior case applied section 302.535 to create a presumption of validity of the director’s evidence, to place a burden on the driver to produce evidence that controverts or contradicts the director’s evidence for the trial court to disbelieve the evidence on a contested issue, or to require written factual findings absent a request by a party, the cases are overruled. Rather than going the route it did in this case, the COA could have relied on the post-White case of Lord v. Dir. of Revenue, 427 S.W.3d 253 (Mo. App. E.D. 2014), wherein the Eastern District determined that “these explanations go more to Lord’s ultimate guilt or innocence than to whether the arresting officer, under the circumstances, had probable cause to arrest her for driving while intoxicated. Id. at 259.

Original Judgment Unnecessary to Show Prior Convictions.

Peterman v. Director or Revenue 579 S.W.3d 268, (Mo.App. E.D 2019).

At the trial de novo  based upon the DOR’s denying Peterman her driving privileges for five years and revoking her driving license for one year based upon her two DWI convictions the Director submitted its Exhibit “A” which included a certified copy of  her Driving Record. The Driving Record listed two prior DWI convictions. Peterman’s appeal argued that that although the Driving Record was admissible, it was insufficient to establish the underlying convictions because it was not an original judgment of conviction and it did not demonstrate the points were assessed after her convictions. In its analysis the Court first determined that Section 302.010(3) stands for the proposition that when a driver appeals any conviction that could result in the assessment of points under Section 302.302, the date on which the points are assessed is the “original judgment of conviction,” while the date on which the suspension or revocation begins is the date of the “final judgment affirming the conviction.” (579 S.W.3d 268, 272). The Eastern District went on to declare that at every TDN there is a three-part burden shifting scheme. First, the driver has the initial burden of showing he or she is entitled to a driver’s license. Second, once the driver meets this initial burden, the burden of production switches to the Director to establish by a preponderance of the evidence that the driver is not qualified for driving privileges, and, Third, the burden shifts back to the driver to establish the facts relied on by the director are untrue or legally insufficient. Based upon the above analysis, the Eastern District affirmed the Circuit Court’s holding that petitioner’s driving record was sufficient to establish petitioner’s underlying convictions for DWI and that the driving record provided by the Director was sufficient to prove DWI convictions, as required to support denial of driving privileges.

Driving Includes Operating a Vehicle

Anderson v. Director of Revenue, 589 S.W.3d 40 (Mo. Ct. App. E.D.2019)

The Director revoked Anderson’s license for a period of one year due to Anderson’s refusal to submit to a chemical test, in violation of Section 577.041, RSMo  The COA started its analysis with the fact that if a person under arrest refuses to submit to an officer’s request for a chemical test, for the Court to uphold the revocation the Director must show (1) the person was arrested or stopped, (2) the officer had reasonable grounds to believe that the person was driving a motor vehicle while in an intoxicated condition, and (3) the person refused to submit to a chemical test. Section 577.041.4. At issue in this case was whether the Director established that the officer had probable cause to believe Anderson was driving while intoxicated. (Author’s note: In chemical cases where a result is obtained, unlike in cases where the chemical test was refused, the Petitioner/driver may contest actual driving. See Hinnah v. Dir. of Revenue, 77 S.W.3d 616, 622 (Mo. banc 2002).  Absurd or not, that is what the statute allows.).

Here, because Anderson’s vehicle was not moving, the issue is not whether he drove, but whether he operated the car while he was intoxicated. Here the issue is driving WHILE intoxicated.  Anderson’s counsel argued that probable cause is still ultimately a determination based on the facts and circumstances of the particular case.  However, the Court reasoned that the motor of the vehicle was functioning at the time of the encounter with Anderson passed out in the driver’s seat.  Further, Anderson did not dispute the evidence supporting probable cause to find he was intoxicated at the time the officer encountered him. Therefore, based upon the facts and circumstances presented, the COA determined there was probable cause to believe Anderson operated the vehicle in an intoxicated condition based on the information available to the arresting officer at the time.

PRACTICE TIP:   Prosecutors  and the Director both love to argue that the charge is Driving While Intoxicated not Intoxicated While Testing. I have a tendency to counter this argument with the fact that it is Driving While Intoxicated not Intoxicated While Testing.

Revocations Distinguished

Romines v. Director of Revenue, 581 S.W.3d 735 (Mo. Ct. App. S.D. 2019)

After a trial de novo from a revocation for refusing a chemical test, the trial court reinstated driver’s license for lack of proof that driver was driving while intoxicated.  Unlike Anderson  v.  Director of Revenue,  589 S.W.3d 40  (Mo. Ct. App. E.D.2019), this is a refusal case unlike where the chemical test was obtained and the Petitioner/driver may contest actual driving. Hinnah v. Dir. of Revenue, 77 S.W.3d 616, 622 (Mo. banc 2002).  Absurd or not, that is what the statute allows.  Director’s burden in a refusal case under section 577.041 is different from the burden in a hearing under section 302.535 which deals with a suspension or revocation for driving with an excessive blood alcohol content not for refusal to take a chemical test. Storck  v.  Dir. of Revenue,  59 S.W.3d 545  (Mo.App. E.D.2001). In essence, the COA declared that the relevant inquiry is not whether the person “actually was driving [while intoxicated] but whether the officer who requested the test had reasonable grounds to believe that the licensee was driving while intoxicated.”  581 S.W.3d 735,740 (Mo. Ct. App. S.D. 2019)

Notice Okay

Carter v. Director of Revenue, 584 S.W.3d 811 (Mo. Ct. App. S.D. 2019)

The dates that are the crux of this appeal, are as follows:

On February 14, 2018, Carter was arrested for driving while intoxicated and a epical test was conducted producing a result of 0.166%. Carter requested an administrative hearing which was held on September 4, 2018.  The hearing officer’s “Findings of Fact and Conclusions of Law” were mailed to both Carter and his attorney stating that the “Date of Mailing to Petitioner” was September 5, 2018, and that the “Date of Suspension” was “September 20, 2018.  The notice sent to both Carter and his attorney included there following language: “This is the final decision of the Director of Revenue. You have 30 days from September 05, 2018, to appeal this decision to the circuit court in your county of residence. 

Carter filed a PFR on September 21, 2018, asserting that his “privilege to drive a motor vehicle in Missouri will be suspended effective October 7, 2018.  The DOR filed a motion to dismiss the petition arguing that because he did not file a petition for trial de novo within fifteen days as required by § 302.530.6, he failed to exhaust his administrative remedies.  The Trial Court, after hearing arguments on the motion to dismiss granted the DOR’s motion, Carter appealed arguing  section 302.311, RSMo. and/or Section 302.530.7, RSMo. were controlling[,] not section 302.530.6, RSMo.. The COA upheld the trial Court’s ruling.  In coming to its determination that the TC lacked jurisdiction the COA refused to engage in the lengthy due process analysis, policy discussion, or even delve into statutory interpretation as Carter had hoped but rather addressed under a rationale of stare decisis.  In Coming to its decision the COA declared that:

The terminal paragraph of the administrative hearing officer’s “Findings of Fact and Conclusions of Law”: “Petitioner’s privilege to drive in the state of Missouri is hereby suspended as authorized and required by Sections 302.505 and 302.525, RSMo.” The first two sentences of the “NOTICE,” positioned directly after the administrative hearing officer’s “Findings of Fact and Conclusions of Law,” state: “If you do not agree with the decision made by the department, you may file a petition for Trial DeNovo in the Circuit Court in the county of arrest. You must file the petition with the court by the effective date of your suspension/revocation.” Any possible confusion as to the import of this language is alleviated in the “Final Order Cover Sheet,” which states: “Your base privilege (Class E, F or M) to drive will be suspended on September 20, 2018[,]” which was fifteen days after the DOR mailed the notice to Carter and his attorney (i.e., September 5, 2018). (Emphasis added).

584 S.W.3d 811,816 (Mo. Ct. App. S.D. 2019)

Thus, because Carter filed a petition for trial de novo after the 15 day allotted period, the trial Court lacked jurisdiction to even hear Carter’s argument. 

Of note, the Court of appeals makes reference to the Supreme Court decision of 

Carvalho v. Director of Revenue, SC97394, 586 S.W.3d 262, 272, 2019 WL 1247086, (Mo. banc Mar. 19, 2019), where the Court citing this very treatise declared:

the person can turn to public sources to learn about the remedial procedures available to him. One such “public source”—available at the time of the events underlying this appeal—touches the issue at the heart of Carter’s challenge rather pointedly (and accurately):

The appeal deadline is quick (15 days) and final (train the staff!). The petition of appeal for judicial review pursuant to section 302.535, also known as petition for trial de novo, must be filed within that 15-day period or the decision of the Missouri Department of Revenue at the administrative hearing shall be final. The period referred to in this statute begins to run on date of the mailing of administrative decision. The attorney needs to have the client not miss this deadline! Have everyone in the office well-versed in the rule…. Err on the side of filing the appeal[.]

42 Mo. Prac., Missouri DUI Handbook, § 13:17 (3rd ed.) (internal footnotes omitted).

Judicial Review De Novo Explained

Waters v. Director of Revenue, 588 S.W.3d 209 (Mo. Ct. App. W.D. 2019)

At a Trial de’ Novo challenging the suspension of her driving privileges as a result of her driving with a blood-alcohol content above the legal limit, Waters argued that her due process rights were violated during the administrative hearing. After the TDN the trial court issued findings of fact, conclusions of law, and judgment sustaining the suspension Waters filed a motion to set aside the Judgment (“motion to set aside”) requesting, inter alia, that the trial court make findings of fact and conclusions of law regarding whether the trial court had authority to consider her allegations that her due process rights were violated during the administrative hearing.  The trial court declared that de novo review does not afford a trial court the authority to review alleged errors during an administrative hearing.  

In a single point on appeal Waters argues the trial court erred in denying her motion for summary judgment and in denying her continuing objection regarding the trial court’s authority in a trial de novo to hear and determine her allegations of due process violations that occurred at the administrative hearing.  Of note by the COA is that:  “Waters did not ask The Court to determine whether a violation of her rights to due process took place during the administrative hearing.” 588 S.W.3d 209, 213 (Mo. Ct. App. W.D. 2019). In determining that the trial court’s understanding of its role in a trial de novo was correct the COA sets forth that Section 302.530.7; section 302.535 and Section 302.535.1 provides that a trial do novo “shall be conducted pursuant to the Missouri rules of civil procedure and not as an appeal of the t decision pursuant to chapter 536.” 588 S.W.3d 209, 214 (Mo. Ct. App. W.D. 2019).  Further the COA declared that while a trial de novo follows an administrative hearing, it is an original proceeding and is not designed or intended to review the underlying administrative proceeding for alleged error and complaints about the outcome of, or “evidence admitted during, an administrative hearing which results in the suspension of the driver’s license are irrelevant.” 588 S.W.3d 209, 215  (Mo.  Ct.  App. W.D. 2019).

Foundation for Test Results Sufficient Without Printout

Moore v. Director of Revenue, 2020 WL 202109, Mo. Ct. App. W.D. 2019)

The Director in an appeal from the Circuit COurt’s denial of a new trial based upon a finding that the breath results were not admissible in a Trial de’ Novo based upon the Director’s failure to show strict compliance with the operational checklist set forth in 19 CSR 25-30.060(3) based upon the AS-IV’s printer’s loss of power resulting in both the commissioner and the TC determining the test results were per se unreliable and inadmissible. 

In reversing, the COA rationalized that circuit court erroneously applied the law in excluding the test results because there was no evidence the machine malfunctioned or that the digital readout showing Moore’s BAC was 0.124% was not accurate or otherwise reliable particularly since the BAC on the breathalyzer ticket that was printed later once the printer was reconnected to electrical power matched the digital readout.  In coming to its determination the COA while agreeing with the circuit court that this checklist contemplates that the printer will be powered on through the completion of steps 4 through 12, and that as a result, when the printer lost power here Officer Snyder failed to strictly comply with the procedural requirements set forth by the Department of Health for administering a breathalyzer test using the Alco-Sensor IV, citing  Shine v. Dir. of Revenue, 807 S.W.2d 160, 162-63 (Mo.App.E.D. 1991) and  Tomkins v. McNeil, 782 S.W.2d 400, 401-02 (Mo.App.W.D. 1989).  The Court has consistently held that the failure to strictly comply with the procedural requirements of breathalyzer testing does not always warrant the exclusion of breathalyzer test results where there has been substantive compliance with the rules promulgated by the Department of Health and that the admission of the printout is not necessary for Director to satisfy its prima facie burden of showing driver’s blood alcohol content. Test results as recorded in the certified Alcohol Influence Report are sufficient to establish blood alcohol content even if the printout tape is illegible or not produced.”). Therefore, as the COA so eloquently put it, the legislative intent is not to protect the rights of individuals by requiring the police and Director to follow the rules that they hold the individual citizenry to but rather simply to vindicate our repeated holding that “[t]he object of the statute and its procedural process is to rid the highways of drunk drivers.” Shine, 807 S.W.2d at 163.

Foundation for Implied Consent Discussed

Goforth v. Director of Revenue, 593 S.W.3d124 (Mo. Ct. App. W.D. 2020)

On judicial review of an administrative revocation for refusal to take a test, Petitioner argued that absent some evidence he ever operated a vehicle on the public highways, under section 577.020.1 consent is not implied and no sanction can be imposed for refusing to submit. The COA in coming to the conclusion that the evidence presented by the Director supported an inference that Petitioner drove on a public highway and thus was subject to 577.020.1 shows once again that the object of DWI law is not to protect the rights of individuals but rather  “[t]he object of the statute and its procedural process is to rid the highways of drunk drivers.” (see Shine, 807 S.W.2d at 163). In reaching this conclusion, the Court declares that “it is reasonable to infer from a driver’s application for and acceptance of a Missouri driver’s license that the driver will operate a vehicle on the public highways of Missouri after receipt of that license.” While this may be a logical assumption, to start with this as the basis for a decision as to driving while intoxicated is flawed because the simple fact that a person may drive on public roadways does not mean they will do so while impaired.  However, the COA goes on to iterate that: “even if we disregard that Goforth possessed a valid Missouri driver’s license, other substantial evidence permitted the inference that Goforth’s refusal was valid because he impliedly consented to submit by operating a vehicle on the public highways in this state.” In this author’s opinion, the COA does not have to disregard Petitioner had a valid license rather it adds flawed logic to justify a conclusion that is not the direct result of the of the premises that having a valid license does not mean a person necessarily accurate to infer or assume that simply because a person possesses a valid license that they will operate a vehicle on the public highways of Missouri after receipt of that license. Further, this is not necessary to reach the same conclusion because there was enough other evidence to permit the inference that Goforth’s refusal was valid because he impliedly consented to submit by operating a vehicle on the public highways in an intoxicated state including that he was found in the driver’s seat of a running vehicle which was parked in the parking lot of a fast-food restaurant.  Goforth also told the responding officer that he had been drinking earlier in the evening at a different restaurant.  Thus the contention that because he had a valid license has no relevance to whether he was driving.

Reasonable Grounds Shown

 Smith v. Dir. of Revenue, 594 S.W.3d 282 (Mo.App. W.D. 2020). 

If you take anything from this section take this statement and put it on your computer screen. Use it as your mantra: Whether there is probable cause to arrest depends on the information  in the officerspossession prior to the arrest and requires more than an inchoate or unparticularized suspicion or hunch.

In finding that the arresting officer had probable cause to believe that the Petitioner was DWI  affirming the TC revocation of his driving privileges the COA citing White v. Dir. of Revenue, 321 S.W.3d 298, 307-08 (Mo. banc 2010) declared that: “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 the COA will affirm the TC’s judgement. 594 S.W.3d 282, 284 (Mo.App. W.D. 2020). In affirming the TC, the COA citing Rain v. Dir. of Revenue, 46 S.W.3d 584, 588 (Mo. App. E.D. 2001). declared what should be every attorney who does DWI’s Mantra “Probable cause requires more than a mere suspicion of intoxication, but less than absolute certainty.” You as the attorney MUST push the officer to articulate how, according to his training, the significance of the observations made in the DUI arrest decision and make them EXPLAIN the relevance of this observation both in general and as it relates to SPECIFIC encounter.

Remember, the COA will always defer to the TC’s determination of credibility.  As the Supreme Court declared in Hinnah v. Dir. of Revenue, 77 S.W.3d 616, 620 (Mo. banc 2002): and the COA iterates here:

The 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, depending upon the trial court’s assessment of the credibility of the officer’s testimony.

Id. At 622

Make your record on appeal.  Tie the officer to their report and make them explain specifically, according to their training what reasonable articulable suspicions lead them to believe your client was DWI.

Groom v. Dir. of Revenue, 2020 WL 2843894, (Mo.App. E.D. 2020)

Groom an 18 year old was stopped after being clocked for speeding 70/55. Following an Administrative Hearing where the Director suspended his driving privileges for DWI the trial Court sustained the Director’s suspension at a  Trial de’ Novo wherein Groom objected to the admission of the Director’s Exhibit “A” as it related to radar in relation to the speed of his vehicle.

Groom’s appeal argued that the TC abused its discretion when it admitted the radar evidence without which there would not be PC to have arrested him.  In this case, Groom argued that Section 302.505.1 allows the Petitioner may contest the basis of the stop.  As pointed out previously, Section 302.505.1 which states as follows allows that if the person is over twenty-one the focus is on the probable cause to arrest while if under twenty-one the focus is on probable cause to stop

The department shall suspend or revoke the license of any person upon its determination that the person was 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, based on the definition of alcohol concentration in section 302.500, or where such person was less than twenty-one years of age when stopped and was stopped upon probable cause to believe such person was driving while intoxicated in violation of section 577.010, or driving with excessive blood alcohol content in violation of section 577.012, or upon probable cause to believe such person violated a state, county or municipal traffic offense and such person was driving with a blood alcohol content of two-hundredths of one percent or more by weight

Section 302.505.1 (West 2020)

According to the COA while the Missouri Supreme Court found in Baldwin v. Dir. of Revenue, 38 S.W.3d 401 (Mo. banc 2001), that there were, as Groom argued, two separate clauses. Groom at 2. The Supreme Court did not address whether the second clause relating to was stopped could be a  “special safeguard,” such that probable cause for the stopmay have come into play even though the Court in Riche v. Director of Revenue, 987 S.W.2d 331, 337 (Mo. banc 1999) allows for such safeguards. Id. at 2.  In determining that there is no special safeguard relating to the stop as opposed to the arrest, the Court relied on Barrett v. Dir. of Revenue, 286 S.W.3d 840 (Mo. App. E.D. 2009), wherein the Court held that “a person less than twenty-one years of age can also be subject to suspension or revocation under section 302.505.1 if that person was stopped upon probable cause to believe such person was driving while intoxicated in violation of section 577.010 RSMo.” It appears that the Court is saying that because the officer had probable cause to stop Groom for speeding (the radar showing 70/55 ), as opposed to DWI, the officer was then allowed to develop probable cause for the subsequent DWI arrest because as the court points out, probable cause for a DWI may be developed after the initial stop. See Peters v. Dir. of Revenue, 35 S.W.3d 891, 895 (Mo. App. S.D. 2001).  The problem with this is that it ignores that the driver in Peters

was over 21 so this does not address the Safeguard issue. Further, the Court then determined that a foundational requirement for the radar evidence was not warranted since it was not required for the probable cause requirement for the Director to suspend Groom’s license

Haffner v. Dir. of Revenue, 2020 WL 2529528, (Mo.App. E.D. 2020)

Background: Respondent was involved in an accident wherein it was later determined he had a 0.175% BAC. Prior to the paramedics arrival, the LEO began investigating. While speaking with Haffner, she  informed him that she was the driver of the overturned vehicle.  The Officer observed Haffner’s breath smelled like alcohol, she had watery, blood-shot eyes, her speech was slurred, and she seemed confused and disoriented. Upon being asked if she had been drinking Haffner responded:”I had some drinks with my friends[.] (sic) what’s that have to do with anything [?] (sic)” @1. After the Director suspended her license pursuant to section302.505 Haffner filed for a Trial de’ Novo and after the TC upheld the suspension she requested a rehearing wherein the TC determined that the Director failed to prove by a preponderance of the evidence that Haffner had been arrested at the time she submitted to the blood alcohol test.” Accordingly, the trial court rescinded the suspension of Haffner’s license. Haffner filed a Motion to Amend the Judgment on March 22, 2019, and the trial court heard argument on the motion on April 19. The trial court denied Haffner’s motion on May 22, 2019. Relying on the Supreme Court case of  Smither v. Dir. of Revenue, 136 S.W.3d 797, 799 (Mo. banc 2004), the Court reasoned that”  “while telling someone they are under arrest is generally not sufficient to actually effectuate an arrest, “in the case of an injured suspect who is already immobilized …, it is impractical to require officers to physically restrain the suspect further.”Id. 799. Haffner argued that because the Officer left her unattended to retrieve the collected blood, “no reasonable person would feel free to leave under those circumstances.” Haffner @5

Cerutti v. Director of Revenue, 2020 WL 3026414, Mo. Ct. App. S.D. 2020)

In this case, the Southern District, although it did not utilize the Eastern District case of Lord v. Dir. of Revenue, 427 S.W.3d 253 (Mo. App. E.D. 2014), revisited the issue of innocent explanations going more to the ultimate guilt or innocence rather than to whether the arresting officer, under the circumstances, had probable cause to arrest.  In determining that the Trial Court misapplied the law and reversed and remanded its judgment with the direction to affirm the suspension of Cerutti’s driving privileges citing White v. Director of Revenue, 321 S.W.3d 298, 307-08 (Mo. banc 2010), as standing for the proposition that while no deference is owed to the final probable cause determination, this Court should defer to the facts found by the trial court, applying the law anew to those facts. Id. at 310. The COA citing to Srader v. Director of Revenue, 525 S.W.3d 600, 603-04 (Mo.App. W.D. 2017), declared that:

Probable cause:

“will exist when a police officer observes unusual or illegal operation of a motor vehicle and observes indicia of intoxication on coming into contact with the motorist. Probable cause, for purposes of section 302.505, will exist when the surrounding facts and circumstances demonstrate to the senses of a reasonably prudent person that a particular offense has been or is being committed. The level of proof necessary to show probable cause under section 302.505 is substantially less than that required to establish guilt beyond a reasonable doubt. There is a vast gulf between the quantum of information necessary to establish probable cause and the quantum of evidence required to prove guilt beyond a reasonable doubt. The trial court must assess the facts by viewing the situation as it would have appeared to a prudent, cautious, and trained police officer.”

Srader v. Director of Revenue, 525 S.W.3d 600, 603-04 (Mo.App. W.D. 2017) (quoting White, 321 S.W.3d at 309 (internal quotations and citations omitted)).

In citing to Srader quoting White, it appears to this Author that the Court forgot to finish reading the discussion in White that “probable cause determinations are to be reviewed de novo under an abuse of discretion standard and give deference to the inferences the trial court made from the historical facts, including the trial court’s credibility determinations.” White at 307. Going further, the White court, citing State v. Milliorn, 794 S.W.2d 181, 183 (Mo. banc 1990) declares:

The trial court is afforded the luxury of cool deliberation—an advantage generally unavailable to persons charged with actual enforcement of the law. Nevertheless, we review the trial court’s decision on appeal under an abuse of discretion standard. Only if the trial court’s judgment is clearly erroneous will an appellate court reverse. This standard of review gives appropriate deference to the trial court’s ability to weigh the credibility of the witnesses, and acknowledges the inability of an appellate court to determine credibility from the lifeless pages of a record. Thus, if the trial court’s ruling is plausible in light of the record viewed in its entirety, this Court may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.”

Id. at 183–84 (citations omitted)(Author’s emphasis).

It appears that the Court also forgot that White stands for the proposition that in satisfying its burden the Director’s evidence is not to be given any presumption of validity, nor should the driver be required to present any evidence to rebut that presumption declaring that such presumption is not supported by the general principles of law which are applicable to court-tried civil cases or by the language of sections 302.505 and 302.535. White at 306. 

The Supreme Court went on to declare that such a practice confuses the law and contributes to inconsistent decisions at the trial and appellate level and declared that “[T]o the extent that these cases or any other prior case applied section 302.535 to create a presumption of validity of the director’s evidence, to place a burden on the driver to produce evidence that controverts or contradicts the director’s evidence for the trial court to disbelieve the evidence on a contested issue, or to require written factual findings absent a request by a party, the cases are overruled. Rather than going the route it did in this case, the COA could have relied on the post-White case of Lord v. Dir. of Revenue, 427 S.W.3d 253 (Mo. App. E.D. 2014), wherein the Eastern District determined that “these explanations go more to Lord’s ultimate guilt or innocence than to whether the arresting officer, under the circumstances, had probable cause to arrest her for driving while intoxicated. Id. at 259.

Certification of the Simulator Within 365 Days of Previous Certification Satisfies 19 C.S.R. 25-30.051(4):

Sledd v. Director of Revenue, 503 S.W.3d 347 (Mo. Ct. App. S.D. 2016)

  Title 19 C.S.R. 25-30.051(4) requires that the simulator used to calibrate breath testers shall be certified ““annually.””

““The primary rule of construction is to ascertain the agency’s intent from the language used and give effect to that intent, while considering the words used in their plain and ordinary meaning.”” Rundell v. Dir. of Revenue, 487 S.W.3d 496, 500 (Mo. App. E.D. 2016). Title 19 C.S.R. 25-30.051 does not define the term ““annually”” … ““In the absence of a definition in the regulation, the words will be given their plain and ordinary meaning &hellip4;….”” Rundell, 487 S.W.3d at 500.1

  Annually, therefore, means within 365 days of the last certification as opposed to within a calendar year.

Only Simulator Certification in Effect at the Time of Maintenance is Relevant to Lay a Proper Foundation:

Carey v. Director of Revenue, 514 S.W.3d 679 (Mo. Ct. App. E.D. 2017)

  The Director of Revenue has promulgated regulations regarding the maintenance of breath machines. It must be established that these regulations were strictly followed in order for the results to be admissible at trial.

““Maintenance checks”” are defined by the Department as ““the standardized and prescribed procedures used to determine that machine is functioning properly and is operating in accordance with the operational procedures established by the Department.”” 19 CSR 25-30.011(2)(F).2

  In laying the proper foundation, only the certification in effect when the breath analysis occurred is relevant. There is no requirement of an unbroken chain of annual certifications back to 2013.

Simulator Certificate for Each Year Leading up to the Year of the Breath Test Not Required:

Hickenbotham v. Director of Revenue, 523 S.W.3d 491 (Mo. Ct. App. E.D. 2017), reh’g and/or transfer denied, (May 16, 2017) and transfer denied, (Aug. 22, 2017)

  DHSS regulations regarding breath testing requires all approved machines to undergo maintenance checks ““at intervals not to exceed 35 days.”” 19 CSR 25-30.050, 30.031(3).

To demonstrate compliance with the regulation, the Director must offer a maintenance report showing that a maintenance check has been performed on the breathalyzer within 35 days prior to the driver’s breath test. Sellenriek v. Director of Revenue, 826 S.W.2d 338, 340 (Mo. banc 1992).3

  DHSS updated the regulations in 2012 adding a new requirement that any simulator ““shall be certified against a National Institute of Standards and Technology (NIST) traceable reference thermometer or thermocouple between January 1, 2013, and December 31, 2013, and annually thereafter.”” 19 CSR 25-30.050, 30.051. This foundation does not require proof of all certifications going back to 2013 and, as the Court points out, such an interpretation of the regulation ““fails to account for simulators brought into use any time after 2013, an illogical reading leading to irrational results.””4

Section 302.505 Applies to the Operation of Motor Vehicles While Intoxicated, Not Motorized Bicycles:

McMillin v. Director of Revenue, 520 S.W.3d 513 (Mo. Ct. App. W.D. 2017)

  According to V.A.M.S. &s;§302.010(10), a motorized bicycle was not a ““motor vehicle,”” and thus McMillin’s arrest for driving a motorized bicycle with blood alcohol concentration level in excess of statutory limit did not support the administrative revocation of his driving license. The plain language of V.A.M.S. &s;§302.010(10) clearly and unambiguously excludes motorized bicycles from the definition of motor vehicle throughout Chapter 302, which applies to the operation of a motor vehicle while intoxicated. Since McMillin was operating a motorized bicycle at the time of his arrest, he cannot be subject to the civil penalties of &s;§302.505.1.

Probable Cause Shown:

Srader v. Director of Revenue, 525 S.W.3d 600 (Mo. Ct. App. W.D. 2017)

  In an administrative action to suspend a driver’s license for driving while intoxicated, the director must establish by a preponderance of the evidence that:

  (1) the driver was arrested on probable cause for violating an alcohol-related offense; and

  (2) the driver’s blood alcohol concentration exceeded the legal limit of .08 percent. White v. Director of Revenue, 321 S.W.3d 298, 307–-08 (Mo. 2010).5

  ““[P]robable cause will exist ‘‘when a police officer observes unusual or illegal operation of a motor vehicle and observes indicia of intoxication on coming into contact with the motorist.’’””6 According to the Court, in this case, the officer observed multiple indicia of intoxication including erratic driving, slurred speech, glassy eyes, inconsistent statements, and results of a preliminary breath test before arresting Srader at the roadside, and those facts established probable cause to justify Srader’s arrest for driving while intoxicated.

Breathalyzer Used in the Right Place:

Marquart v. Director of Revenue, 549 S.W.3d 56 (Mo. Ct. App. E.D. 2018)

  The foundation for admitting into evidence the results of a breath test include proof that the testing device used complied with a Department of Health regulation. That regulation requires the Director to establish that the test was performed:

(1) using the approved techniques and methods of the [Department] of Health; (2) by an operator holding a valid permit; (3) on equipment and devices approved by the Division of Health.”” Bartholomew v. Dir. of Revenue, 462 S.W.3d 465, 469 (Mo, App. E.D. 2015) (citing Irwin v. Dir. of Revenue, 365 S.W.3d 266, 269 (Mo. App. E.D. 2012).7

  In this case, Marquet contested that the officer did not use approved techniques and methods of DHSS in that 19 C.S.R. 25-30.050 refers only to specialized vehicles used at DWI checkpoints. The Court determined that the regulation sets out an exclusion for ““mobile use”” in two specific locations: ““boats”” and ““outside areas.”” Therefore, the current language of 19 C.S.R. 25-30.050 only requires the unit be used either inside a building or inside a vehicle used in DWI enforcement.

Calculation of the 15-minute Observation Period Enumerated in 19 C.S.R. &s;§25-30.011(2)(H):

Smith v. Director of Revenue, 560 S.W.3d 898 (Mo. Ct. App. W.D. 2018)

  At issue in this case is the calculation of the 15-minute observation period enumerated in 19 C.S.R. &s;§25-30.011(2)(H). The Court determined that:

19 C.S.R. &s;§25-30.011(2)(H) defines the ““[o]bservation period”” as ““the minimum fifteen- (15-) minute continuous period that ends when a breath sample has been provided into the approved breath analyzer.””8

  Therefore, the Court interpreted 19 C.S.R. &s;§25-30.011(2)(H) to require the 15 minutes end with the recording of a breath sample, not the starting of the breath sample machine. The Court further determined that BAC test results are admissible through either the alcohol influence report or an officer’s testimony. Therefore, the AIR is sufficient for the Director’s foundation.

Section 302.505.1 Requires the Director to Establish Actual Driving:

Boggs v. Director of Revenue, 564 S.W.3d 693 (Mo. Ct. App. W.D. 2018), reh’g and/or transfer denied, (Nov. 14, 2018) and transfer denied, (Jan. 29, 2019)

  At trial de novo, the arresting officer testified, and the Director introduced several exhibits, including the trooper’s accident report, the trooper’s alcohol influence report, and a video of the trooper’s interaction with Boggs. No other evidence was submitted by the Director, and Boggs, the defendant, did not testify. The testimony consisted of the facts that Boggs wrecked a vehicle at 11:00 p.m., consumed no alcohol after the wreck, and was intoxicated as defined by statute at 4:41 a.m. Section 302.505.1 requires the Director to:

suspend or revoke the license of any person upon its determination that the person was 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, based on the definition of alcohol concentration in section 302.500[.]9

  Therefore, the Court of Appeals determined that the Director failed to provide sufficient evidence that Boggs was intoxicated at the time of the accident.

Report Irrelevant to Test Result:

Roam v. Director of Revenue, State, 559 S.W.3d 1 (Mo. Ct. App. E.D. 2018)

  DHSS promulgated regulations regarding the maintenance of breath machines to require periodic maintenance, with which the Director of Revenue must show strict compliance. ““At issue here is the regulation requiring maintenance checks at 35-day intervals.””10 The Court of Appeals declared that trial court erroneously excluded the BAC results because the maintenance report had not been filed with DHSS. Under Turcotte v. Director of Revenue, State of Mo., 829 S.W.2d 494, 495 (Mo. Ct. App. E.D. 1992), the filing of the report with DHSS is not mandatory and failure to do so does not render the BAC results inadmissible.11

Chemical Refusal:

Section 302.505 Does Not Require Reasonable Suspicion for the Stop:

Williams v. Director of Revenue, 521 S.W.3d 658 (Mo. Ct. App. E.D. 2017)

  In an administrative suspension hearing where the driver is over the age of twenty-one, the Director must only establish probable cause to arrest the driver. Requiring the Director to prove there was reasonable suspicion to justify the stop while proper in the criminal trial is improper here. The Court of Appeals held that the Director is only required to prove there was probable cause to arrest Williams for driving in violation of an alcohol related offense, relying on Riche v. Director of Revenue, 987 S.W.2d 331 (Mo. 1999).12

Silence Constitutes Refusal:

Allison v. Director of Revenue, 525 S.W.3d 127 (Mo. Ct. App. W.D. 2017), reh’g and/or transfer denied, (Sept. 5, 2017)

  Pursuant to Section 577.020.1(1) (Missouri’s implied consent law), ““[a]ny person who operates a motor vehicle upon the public highways of this state shall be deemed to have given consent to … 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.”” However, under Mayfield v. Director of Revenue, 100 S.W.3d 847, 850 (Mo. Ct. App. S.D. 2003), ““[r]evocation is conditioned upon an officer making a ‘‘statutorily sufficient ““request””  ’’ that a driver submit to chemical testing.”” ““A ‘‘refusal’’ occurs when a person fails, of his or her own volition, to do what is necessary in order for the test at issue to be performed.”” However, ““[A] refusal to submit to a chemical test need not be shown by the driver’s express refusal upon the initial request.”” Hursh v. Director of Revenue, 272 S.W.3d 914, 917 (Mo. Ct. App. W.D. 2009). When the trooper asked Allison, the defendant, if she consented to a breath test she remained silent. By failing or refusing to respond, Allison’s actions constituted a refusal and the fact that she was handcuffed in a police car when first asked did not constitute coercion or influence her ability to respond to the officer’s question whether she would submit to testing.

Reading Implied Consent Law Is Enough:

Trentmann v. Director of Revenue State, 541 S.W.3d 39 (Mo. Ct. App. E.D. 2018)

  Relying on White v. Director of Revenue, 321 S.W.3d 298, 309 (Mo. 2010), the Court determined that the officer’s observations of a moderate odor of intoxicants, bloodshot and watery eyes, and mumbled speech would lead a cautious, trained, and prudent officer at the scene at the time of the arrest to believe Trentmann, the defendant, had driven while intoxicated. Trentmann argued that because the time of the crash was unknown, a reasonably cautious, prudent, and well-trained officer could not reasonably believe he drove while intoxicated without knowing when the crash occurred. However, the precise time of the crash is unnecessary for purposes of determining probable cause. Trentmann next argues that the trial court erroneously applied the law because the officer violated statutory notice requirements by failing to state multiple reasons for requesting a breath test after arresting Trentmann.

  The Court concluded that Section 577.041 requires an officer to give a driver certain information before demanding a chemical test and reading the implied consent law is sufficient to satisfy those requirements.

Call to Attorney Was Not Private:

Roesing v. Director of Revenue, 573 S.W.3d 634 (Mo. 2019)

  This case presents the question whether the right to attempt to contact an attorney pursuant to section 577.041.1 includes the right to speak to the attorney privately, should the attorney be contacted successfully. The Supreme Court declared that:

Privacy is inherent in a driver’s statutory right to counsel. To interpret section 577.041.1 otherwise would contradict section 577.041.1’s purpose of providing drivers with a reasonable opportunity to have a meaningful contact with an attorney in order to decide whether to submit to a chemical test and, accordingly, would create absurd results. (emphasis added).

  Because the Director failed to prove that Roesing was not prejudiced by the officer’s depriving Roesing of his right to confer privately with his attorney, his refusal to consent to the chemical test was not voluntary and unequivocal under section 577.041.

Warning Sufficient:

Mullin v. Director of Revenue, 556 S.W.3d 626 (Mo. Ct. App. W.D. 2018)

  Pursuant to Missouri’s Implied Consent Law, ““[i]f a driver refuses to submit to chemical analysis to determine [her] blood alcohol content, that driver’s license will be subject to revocation pursuant to section 577.041.”” Allison v. Director of Revenue, 525 S.W.3d 127, 130 (Mo. Ct. App. W.D. 2017), reh’g and/or transfer denied, (Sept. 5, 2017). However, said revocation is conditioned upon an officer making a statutorily sufficient ““request”” that a driver submit to chemical testing. The reading of the implied consent advisory is sufficient to meet these requirements. The purpose of the warning, according to the Supreme Court in Teson v. Director of Revenue, State of Mo., 937 S.W.2d 195, 197 (Mo. 1996), is to inform an apparently inebriated driver of the consequences of the refusal, not the consequences of taking the test. In this case, the Officer’s explanation of the prosecutor’s practices in cases of DWI versus refusal was sufficient under 577.041.1.

Alcohol Odor and Bloodshot Eyes Insufficient for Probable Cause:

Rocha v. Director of Revenue, 557 S.W.3d 324 (Mo. Ct. App. W.D. 2018)

  Post White v. Director of Revenue, 321 S.W.3d 298 (Mo. 2010), an Officer’s observations of bloodshot eyes, which the driver attributed to fatigue, and an odor of alcohol, which the driver attributed to drinking the night before, with no additional evidence is not sufficient to establish probable cause for an arrest.

Warning Given for Breath, Not Blood:

Howe v. Director of Revenue, 575 S.W.3d 246 (Mo. Ct. App. E.D. 2019), reh’g and/or transfer denied, (Mar. 21, 2019) and transfer denied, (June 4, 2019)

  Section 577.020 governs implied consent for chemical tests and states that a person is deemed to have consented to having their breath, blood, saliva, or urine chemically tested to determine their blood alcohol content. Before any finding that the defendant refused to submit to any blood test is a corresponding finding under Section 577.041.2 that her refusal was valid under Sections 302.574.4, 577.041.2. The defendant’s refusal could only be valid if the officer informed her that her refusal to submit to the blood test would result in the revocation of her license. The officer’s reading of the implied consent warning prior to the breath test was not sufficient to negate any requirement that he repeat the implied consent warning before the blood test. While the officer was permitted by statute to request two chemical tests, he must read the implied consent advisory before both tests. In the present case, because he did not read the implied consent prior to requesting the defendant’s blood, only his first request for the breath test complied with the statutory requirements of Section 577.041.2.

Reasonable Cause Shown:

Mannino v. Director of Revenue, 556 S.W.3d 667 (Mo. Ct. App. E.D. 2018)

  On review of a revocation, whether there is probable cause to arrest depends on the information in the officer’s possession prior to the arrest and whether said information would lead a cautious, trained, and prudent officer at the scene at the time of the arrest to believe the defendant had driven while intoxicated. Said information must be available to the officer at the time of the arrest not after the arrest. The defendant’s initial arrest was for leaving the scene of an accident, so reasonable cause for that arrest was not relevant, and reasonable cause was relevant as to later arrest for driving while intoxicated. The evidence available to the officer at the time of the defendant’s arrest was that he made ““several incriminating statements to the officers, failed three field sobriety tests, and refused to submit to a chemical test of his breath.”” Further, the Court concluded that while an unidentified tip that a driver was potentially driving under the influence might not support reasonable cause, the ability of the 911 operator’s to identify the caller precludes characterization as an ““anonymous source.””

Filing of the Maintenance Report with DHSS Does Not Render the Results Inadmissible; Rather it Goes to the Performance of the Equipment:

Hearne v. Director of Revenue, 559 S.W.3d 66 (Mo. Ct. App. E.D. 2018)

  DHSS regulates the proper maintenance and operation of breath analyzer tests and requires maintenance checks on breath analyzer tests at 35 day intervals, along with the submission of a copy of the report to DHSS within 15 days.

  Foundation for entering blood alcohol test results into evidence includes approved testing equipment used by approved personnel. Under Turcotte v. Director of Revenue, State of Mo., 829 S.W.2d 494, 495 (Mo. Ct. App. E.D. 1992), the filing of the report with DHSS is not mandatory and the failure to do so goes to the performance of the equipment and does not render the results inadmissible.

Habits and Conduct Not Enough:

Thanner v. Director of Revenue, 518 S.W.3d 859 (Mo. Ct. App. E.D. 2017)

  Under Section 302.060, three or more DWI convictions result in denial or revocation of a Missouri driver’s license for ten years.

On judicial review of such a denial, the driver has the burden of producing evidence that he was qualified for a driver’s license, and the Director has the burden of producing evidence that the driver is not eligible. Kinzenbaw v. Dir. of Revenue, 62 S.W.3d 49 (Mo. 2001). The Director can meet that burden by introducing the administrative record. Id. The driver must then show that the administrative record is incorrect or the grounds for denial unlawful. Thanner, 518 S.W.3d at 859.13

  While reformed habits and conduct are necessary for issuance of a license under that statute, they are not a replacement for the passage of ten years. The defendant, at all times relevant, possessed a valid Georgia license. He argued that the Director’s denial of his application for a Missouri license violates the Compact that prescribes ““the reciprocal recognition of licenses to drive and eligibility therefor.”” V.A.M.S. &s;§302.600 art. I (b)(2). In other words, the defendant argued that Missouri must issue him a license because he had a valid Georgia license. The Court held that the Compact does not require such a result.

Breath Test in Patrol Car Permissible:

Baker v. Director of Revenue for State, 569 S.W.3d 63 (Mo. Ct. App. W.D. 2019)

  DHSS’s regulations allow an officer to administer a breath test in his patrol vehicle. 19 C.S.R. 25-30.050(1) specifically identifies the Alco-Sensor IV with Printer as a machine approved by the State of Missouri as an evidentiary breath test. 19 C.S.R. 25-30.050 goes on to say that ““[b]reath analyzers are to be used within buildings or vehicles used for driving-while-intoxicated enforcement. These breath analyzers are not approved for mobile use in boats or in outside areas.”” 19 C.S.R. 25-30.050(2) (emphasis added). The Court noted that the Eastern District had decided this exact issue in Marquart v. Director of Revenue, 549 S.W.3d 56 (Mo. Ct. App. E.D. 2018) and held that a patrol vehicle is a ““vehicle used for driving-while-intoxicated enforcement”” within the meaning of 19 C.S.R. 25-30.050(2).

  The Director of Revenue appealed the trial court’s ruling at trial de novo reinstating the petitioner’s driving privileges based on a determination that the officer’s reading of the implied consent advisory was improper. In the present case, the officer read the implied consent warning as required, which stated that a driver’s license was subject to immediate revocation on refusal to take a breath test. According to the trial court, this warning was inaccurate because the driver’s license was not immediately suspended and therefore it misinformed the driver in violation of constitutional provisions, and as such was inadmissible. The Court of Appeals (Thomas v. Director of Revenue, 575 S.W.3d 713 (Mo. Ct. App. E.D. 2018)), transferred the case to the Supreme Court because the case involved a determination of the constitutionality of the statute governing implied consent warnings. The Supreme Court retransferred case for reconsideration in light of Carvalho v. Director of Revenue, 2019 WL 1247086 (Mo. 2019), opinion modified and superseded on denial of reh’g, (Apr. 30, 2019). In Carvalho, the Supreme Court declared that:

[T]he purpose of the implied consent warning is not to obtain a driver’s consent to a breath test. …the purpose of the warning is only to inform drivers … they can withdraw that implied consent and refuse to submit to any chemical tests but, if they so choose, there will be consequences. See Kimbrell v. Director of Revenue, 192 S.W.3d 712, 716 (Mo. App. 2006).15

  Based on this rationale, the Court of Appeals reversed the trial court’s decision and remanded it, holding that the Missouri implied consent warning’s statement that a driver’s license would be ““immediately”” revoked upon refusal of a breath test was not misleading, and the breath test results were not obtained in violation of the driver’s due process rights and as such were admissible.

““Collective Knowledge”” of Officers for Probable Cause; Witness Statements Evidence Sufficient to Support Finding of Probable Cause of Intoxication:

Beasley v. Director of Revenue, 505 S.W.3d 326 (Mo. Ct. App. S.D. 2016)

  In this case, the defendant contested the trial court’s finding of probable cause based on the following: (1) Trooper Myers did not personally observe any signs of intoxication before placing him under arrest; (2) Sgt. Foster’s only involvement in the case was to investigate the accident; (3) the statements of the EMS helicopter crew, that they believed Beasley was intoxicated, were not substantial evidence, and the reports the trooper received advising that the driver was ““possibly intoxicated”” were not substantial evidence; and (5) any evidence learned after his arrest was not substantial evidence and should not have been considered by the court in its probable cause determination.

  In Tolliver v. Director of Revenue, 117 S.W.3d 191, 197 (Mo. Ct. App. S.D. 2003), the Court of Appeals determined that ““[t]here is no precise test for determining whether probable cause existed; rather, it is based on the particular facts and circumstances of the individual case.”” The Tolliver court went on to declare that ““[p]robable cause is determined by the collective knowledge and the facts available to all officers participating in the arrest, and the arresting officer need not possess all of the available information.”” In the present case, according to the court, the defendant’s argument that the trial court erred because there was not substantial evidence to support a probable cause finding that he was driving while intoxicated is flawed. The Supreme Court directs in White v. Director of Revenue, 321 S.W.3d 298, 308 (Mo. 2010) that the trial court’s judgment will be affirmed unless it is not supported by substantial evidence, is against the weight of the evidence, or erroneously declares or applies the law.

  While there is no precise test for determining whether probable cause exists, the Toliver Court did give guidance in declaring probable cause is based upon the particular facts and circumstances of every individual case and the collective knowledge and the facts available to all officers participating in the arrest. Therefore, the arresting officer need not possess all of the available information if such information is made available to him. Further, in a challenge to whether substantial evidence existed, the court does not need to even consider any contrary evidence regardless of whether the burden of proof at trial was proof by a preponderance of the evidence or by clear, cogent, and convincing evidence.

Circumstantial Evidence is Sufficient to Establish Logical Inference of Driving:

Stuart v. Director of Revenue, 488 S.W.3d 743 (Mo. Ct. App. E.D. 2016)

  Stuart appeals the trial court’s finding that the officer had probable cause to arrest him for driving while intoxicated, even though no one saw him driving. The Court of Appeals affirmed, holding that the police officer had probable cause. In reaching this decision, the Court of Appeals first pointed out that:

Probable cause, for purposes of V.A.M.S. &s;§302.505, will exist ““when the surrounding facts and circumstances demonstrate to the senses of a reasonably prudent person that a particular offense has been or is being committed.””36

  In coming to its determination and viewing all the evidence, the Court of Appeals noted that, based upon the circumstantial evidence available to the officer, including a license plate found at the scene, the officer was justified in going to Stuart’s house. At Stuart’s house, he found a vehicle with a badly damaged front-front-end as well as Stuart, who was obviously intoxicated. Stuart then admitted driving the vehicle during the crash but said repeatedly he had not consumed alcohol since arriving home after the crash. Viewing these facts most favorably to the trial court’s judgment and rejecting contradicting evidence and inferences, a prudent, cautious, and trained police officer would have developed probable cause to believe that Stuart had been driving while intoxicated.

Lagniappe’

First and foremost, you must remember, TIME IS CRITICAL   In Missouri, you potentially have as little as fifteen days to request an administrative hearing if you took the chemical test or 30 days to file a petition for review if they refused a chemical test.

Generally, DUI attorneys need their clients to take the necessary action to preserve evidence even before they meet with the attorney.  Remember, sometimes, the case is won on the minutia.   A good attorney will request you gather “evidence” from the date of the occurrence that is in your  possession like receipts for dinner and drinks, cell phone numbers or messages received or left on cell or other phones. Also, the attorney will likely request you bring the actual clothing and specifically shoes  you wore.   Even if you threw away a receipt from a restaurant or bar, a quick trip back to the scene could be helpful if a copy was saved by the establishment. Also, a quick trip to the places you went that day to see if they remember you would be very helpful. The bartender or waitress will likely not remember you or what you had to eat or drink six months or more down the roadbed the attorney can  have an investigator take a recorded statement.

The attorney will ask you for basic information such as some details on where the stop occurred, where standardized field sobriety tests (SFST) were performed, and where the investigation took place. Photographs or video of these areas can prove invaluable to your case. 

Additionally, valuable evidence in the form of video surveillance can disappear quickly, and an effort may need to be launched even before the client sets foot in the attorney’s office.  Some jurisdictions tape over video surveillance after a few days, while others keep surveillance on tapes longer than 45 days. Assume nothing; verify everything!

Other items you should gather that are relevant to the arrest include but are not limited to evidence of receipts for drinks, food, fuel, events, etc. (e.g., bar/restaurant receipts, ATM receipts, debit receipts); a list of people who may have seen or or been with you on the day you were arrested; a list of your previous doctors, a list of prescriptions and OTC drugs you take on a regular on a regular basis; photographs of the place you were arrested taken from all angles (360 degrees and distances) like scene of arrest conditions, the condition of the vehicle driven, skid marks, muddy conditions; shoes and clothes worn on the day of arrest; and a brief history of what went on, starting chronologically with everything that happened to you from 24 hours before your arrest and including sleep patterns and hours until after you were released.

Understand NO ONE KNOWS YOUR CASE BETTER THAN YOU. therefore, what you do is critical to the success of your case.

I’ve Been Arrested for DUI – Now What Do I Do?

I Have Been Arrested For DUI Now What Do I Do?

If you are reading this, you or someone you care about was probably, recently arrested for  DWI.  You may be angry and scared about the charges with which you are accused.  A DWI charge and arrest can be a serious, life-altering event. You may even be disappointed and upset with yourself over the way things turned out.  So odds are, based on my more than 20 years experience, the question you are asking yourself is the same as most of my clients:  NOW WHAT DO I DO?  In this and the next post I am going to do my best to answer that very question. 

If you are reading this within a few hours of your arrest consented to a chemical breath test, and you believe you were not intoxicated you should IMMEDIATELY, before you even finish this post, go to a local hospital and get a blood test done.  Otherwise, read on to:  1) see you are not as screwed as you probably think you are, and 2) What you can do to hire the best attorney for your case and help that Attorney defend you.

What should I do Checklist:

Don’t Wait:

After being arrested for a DWI, it is understandable to be angry, upset, scared, and even a bit confused.  Most people run the gamut of not only these emotions but also they are often embarrassed and would rather not deal have to deal with the situation so they chose to do nothing.  Some people have even gone so far as to wait until days before their first Court appearance or even after to contact an attorney hoping it will just go away because they do not want to be judged by their family, friends or co-workers and so end up doing nothing.  PLEASE do not do this.  The truth is a DWI  can and likely will become a nightmare if it is not addressed quickly.  For example, in Missouri, you have as little as 15 days to: contact and attorney and have that attorney file the proper paperwork or you will lose you ability to drive.  Now is NOT the time to hide your head in the sand.  No one knows the facts of your case better than you and while this post is intended to educate and help guid you, knowledge without action is meaningless. 

YOUR PROACTIVITY CAN:

DECREASE FEAR AND INCREASE THE

POSSIBILITY OF  A GOOD OUTCOME

Know These Facts:

  • Time can be your friend or your enemy depending on how you use it;
  • Many DWI cases can be mitigated if addressed promptly;
  • Failing to act in a timely manner (In Missouri as little as 15 DAYS) )will end in you losing your ability to drive for SIX MONTHS or more in such a way that no attorney can help you;
  • If you act quickly you can be back driving with NO interruption;

The WORST MISTAKE that most people make is waiting to hire an attorney because they do not want to spend the money or do not know where to begin (Please contact my office for my FREE REPORT: The True Cost of a DUI: If you think Hiring a Good Lawyer is Expensive Hire A Bad One). Under Missouri law, if you submitted to a chemical test, you have 15 days to contest the Suspension of your driving privileges.  In Missouri, if you refuse to submit to a chemical test you have 30 days to contest the suspension of your driving privileges.  In Illinois, regardless of whether you submit or refuse you have 90 days to contest the suspension of your driving privileges.  However, your ability to drive will be suspended automatically in 45 days regardless unless you win the summary suspension hearing.  Fifteen, Thirty, Forty-Five, or Ninety days is NOT a lot of time to educate yourself, intact an attorney, prepare and gather information,  and act.  In short, the sooner you become proactive and act the better your chance at a favorable outcome.  

Should I Blow?

The question I get asked probably more than any other is “Should I Blow or not?”

My response to this question is why would any attorney who even slightly knows anything even consider answering this question at 1 or 2 o’clock in the morning from someone calling from a police station? The answer. They would not.  Why you might ask? Simply, they don’t have enough information to provide an informed answer that would be of any help to the would be client.  Further, there is no real way to get the necessary information from the would be client who is sitting in the police station surround by those people seeking to assist a prosecutor in prosecuting him or her for DUI.   The flip off the cuff response that most might expect of hell no, those machines are never accurate or Sure if you haven’t been drinking are not only a disservice to the would be client but put the attorney at risk of being sued for malpractice for providing such information to a person who has neither paid his fee nor signed a contract?

Putting aside such the risk of being sued for malpractice by someone who you will likely not hear from again the wise attorney may answer the hypothetical question of whether any such person should blow into any breath machine being cognizant of that fact that to tell a person to do so is, in fact, telling them to break the law since the implied consent contracts of most states require acquiescence to such a test even though the very same contract provides a right to refuse said test. Whether someone should blow into one of these machines depends on a number of specific circumstances in every situation.  Have you had anything to drink? How much? How long ago? What did you drink? Have you had anything to eat? How long ago? All of these questions factor into the ultimate answer.  However, please understand if you refuse to take such a test it can be used against you as probable cause in determining whether you are intoxicated.  The reason for this is because the case law in most states that has that a person who is not guilty or not intoxicated would not refuse such a test if such a test would prove he was not intoxicated.  Further, your refusal could also be used by the officer as a means of getting a warrant to subject you to either a urine or blood test.

Getting back to the specifics of the question “Should You Blow”? Even the people in charge of Missouri‘s breath program think this program is deficient and biased in that approximately 30% of those with a positive result are, in truth, not intoxicated and are giving a false positive.  Both Missouri and Illinois are what are called “single test states”.  This means the officer only has to do one test as opposed to the more preferred two test States. Further both Missouri and Illinois use the AS-IV as one of their most commonly used evidentiary breath testing machines.  This machine does not even have a slope detector which is supposed to prevent mouth alcohol.  What this means is that things such as breath mints, chewing gum, tobacco, and snuff along with certain medical conditions such as Gerd or even food can elevate your breath alcohol result to that equivalent of alleged intoxication.  Additionally, while gross, if you have eaten all those food particles between your teeth, or dental appliances serve as tiny little sponges that soak up the alcohol, and then when you blow you blow that same alcohol right into the machine.  If you are going to consent which is the law under the implied consent contract I would suggest upon leaving you then go to the nearest hospital and have a blood alcohol test done at the hospital.  Lastly, to a good attorney, whether you blow or not is not going to make a difference as to whether they can help you.