Case Law Update: 2011-2014 Cumulative Edition

Holdings: (1) Even though the trial court found Director’s BAC evidence not to be credible based on an erroneous belief that Officer’s breathalyzer test did not comply with DHSS rules, Director’s argument on appeal relies on an implicit presumption that Director’s prima facie evidence of intoxication is true and shifts the burden of proof to Driver, which is an incorrect interpretation of law under White v. Dir. of Revenue, 321 S.W.3d 298 (Mo. banc 2010); and (2) Even though Director submitted breathalyzer results showing a BAC over .08, Sec. 577.037 does not create a statutory presumption of the validity of breath test results in license revocation cases, but rather provides an alternative means of proving the element of “intoxicated condition” of DWI under Sec. 577.010.1.

Discussion: Director contends that since he introduced evidence that Driver’s BAC was over .08, a statutory presumption under Sec. 577.037 arises that Driver had a BAC over the legal limit. However, the Western District rejected this argument in Collins v. Dir. of Revenue, 2013 WL 1876622 (Mo. App. W.D. May 7, 2013). Sec. 577.010 is the criminal statute for DWI. Under 577.010, it is not necessary for the State to prove the Defendant had a BAC of .08 or higher, only that the Defendant operated a vehicle in an intoxicated condition. However, if the State has credible evidence of excessive BAC, the State may use the presumption in Sec. 577.037 to prove the necessary element of intoxicated condition. In contrast, to support revocation or suspension of a license, the State must prove, in relevant part, that Driver’s BAC exceeded .08. The presumption of intoxication in Sec. 577.037 does not aid the Director in establishing a case for revocation or suspension under 302.505.1. Trial court’s reinstatement of license affirmed.
State v. Wilson, No. ED95423 (Mo. App. E.D. 7/12/11):

Where trial court failed to find Defendant’s prior DWI convictions before the case was submitted to the jury but did so afterwards, this violated the timing requirements of 577.010 RSMo. Cum. Supp. 2008, and required that Defendant’s sentence as a chronic offender be vacated.

Facts: Defendant was charged with DWI as a chronic offender under Sec. 577.010 RSMo. Cum. Supp. 2008. Before the case was submitted to the jury, the State introduced four exhibits showing four prior DWI convictions. However, the trial court did not make any finding about Defendant being a chronic offender until after the jury’s guilty verdict. Defendant was then sentenced to 12 years.

Holding: Sec. 577.023.7(3) RSMo. Cum. Supp. 2008 provided that in a jury trial, the facts pleaded for prior convictions shall be established and found prior to submission of the case to the jury. Here, the court violated the timing requirements of the statute by not doing this until after the jury’s verdict. This was plain error, and requires that Defendant’s sentence as a chronic offender be vacated. Case remanded for resentencing without any type of prior offender status.
State v. McArthur, No. ED95094 (Mo. App. E.D. 7/5/11):

Holding: Where Defendant charged with sodomy had a bifurcated trial, State may present in penalty phase testimony of a prior sexual assault victim of Defendant about that prior bad act.

Editor’s Note: An interesting dissenting opinion argues that State went too far in being allowed to present prior victim and then argue jury should impose maximum sentence to avenge prior victim’s assault, since that was not the subject matter of this particular case.
John Doe v. Roman Catholic Diocese of St. Louis, No. ED94720 (Mo. App. E.D. 7/5/11):

Holding: Alleged “grooming” of a victim to engage in sexual abuse does not constitute sexual abuse itself.
State v. Rattles, 2014 WL 4922970 (Mo. App. S.D. Oct. 1, 2014):

Holding: While Sec. 577.023.16 allows Department of Revenue certified driving records to be used to prove prior offender status for DWI enhancement purposes, appellate court does not decide if the statute violates due process by abrogating the constitutional requirement that the existence of prior convictions be supported by substantial evidence.

Discussion: The State enhanced defendant’s DWI offense by using his certified driving records to prove prior DWI convictions. Sec. 577.023.16, which became effective in 2010, allows certified driving records of the Department of Revenue to prove evidence of prior convictions. When the legislature lists a particular source as authorizing the trial court to find the existence of a prior conviction, that source contains all the information necessary to prove the prior conviction. Hence, the evidence was sufficient here. Footnote 3 states, however, that “[w]e do not mean to imply by this analysis that the legislature could by statute abrogate the constitutional requirement that the existence of prior convictions be supported by substantial evidence. However, we need not, and do not, reach the issue of whether the statute here presents that problem as Defendant does not argue that the statute on its face violates due process in that manner.”
Neff v. Director of Revenue, 437 S.W.3d 394 (Mo. App. S.D. 2014):

Holding: Where the only evidence at license revocation hearing was that Officer asked Driver to give a breath test but Driver refused, Director produced no evidence that Officer ever informed Driver of the Implied Consent Law, so revocation of license is reversed. To revoke a license under Sec. 577.041 for refusal, the Driver must be given the Implied Consent Warning and an opportunity to contact counsel if Driver requests.
Clark v. Director of Revenue, 2014 WL 1609690 (Mo. App. S.D. April 22, 2014):

Holding: Trial court in license reinstatement case was free to disbelieve Trooper’s testimony about the Driver at issue, and given trial court’s specific credibility determination, appellate court was required to affirm trial court’s finding that Trooper did not have reasonable grounds to believe Driver was driving in an intoxicated condition, under the deferential standard of review as set forth in White v. Department of Revenue, 321 S.W.3d 298 (Mo. banc 2010).
Warren v. Director of Revenue, 2013 WL 6493712 (Mo. App. S.D. Dec. 11, 2013):

Holding: Even though Driver was found in an intoxicated condition and injured about five miles from a crash scene where his car had been abandoned, where the trial court found that Officer did not have reasonable grounds to believe that Driver had driven while in an intoxicated condition because the time of the accident was unknown, Director failed to carry his burden to prove that Driver drove while intoxicated. Director’s reliance on similar cases which found reasonable grounds to believe intoxication is misplaced here, because there is no longer a presumption of validity of Director’s uncontroverted evidence after White v. Dir. of Revenue, 321 S.W.3d 298 (Mo. banc 2010), and trial court was free to disbelieve it. Trial court’s reinstatement of license is affirmed.
Letterman v. Director of Revenue, 2013 WL 5786842 (Mo. App. S.D. Oct. 28, 2013):

Holding: Even though Officer smelled alcohol on Driver, who had crashed an ATV to avoid hitting a dog, and even though a portable breath test (PBT) was positive for alcohol, Director had burden to prove by preponderance of evidence that Officer had probable cause to arrest for DWI and that Driver was driving with BAC above the legal limit, and trial court was free to disbelieve PBT test results because the PBT machine was not properly calibrated, not properly maintained and not used in accord with the manufacturer’s directions. Trial court’s judgment reinstating license is affirmed.
Johnson v. Director of Revenue, 2013 WL 5786782 (Mo. App. S.D. Oct. 28, 2013):

Holding: Where Driver was given a breath test that showed an “invalid sample,” and then given a second breath test five minutes later which showed a BAC of .209%, trial court was free to disbelieve the results on grounds that Officer had not waited at least 15 minutes to administer the second breath test, as some breathalyzer manuals say should happen. Further, even though there may be regulations and caselaw that do not require another 15-minute waiting period between tests, trial court did not erroneously declare the law, because it admitted the BAC evidence (did not exclude it), but chose to disbelieve it. As finder of fact, it was trial court’s prerogative to believe or disbelieve the evidence. Trial court’s judgment reinstating license is affirmed.
State v. Eisenhour, 2013 WL 5710545 (Mo. App. S.D. Oct. 21, 2013):

As matter of first impression, numeric results of Pre-arrest Portable Breath Test are not admissible as “exculpatory evidence” under Sec. 577.021.3.

Facts: Defendant was stopped for DWI, and failed several field sobriety tests. Defendant had alcohol on breath, and said he also had taken some pills and K2. He was given a pre-arrest portable breath test (PBT), which result was .002% BAC. He sought to use this test result at trial as exculpatory evidence, but the trial court excluded it. This test is not the same as a “Data Master” test at the police station, which is certified and calibrated. After conviction, he appealed.

Holding: Sec. 577.021 says a PBT “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.” While a positive PBT is admissible to show whether there is probable cause to arrest, the statute demonstrates that the legislature had forbidden the test to be used to prove intoxication, because the PBT test is “too unreliable” to be used for that purpose. No case interprets what the statute means when it states that the result may be admissible as “exculpatory evidence.” The State argues that the presence or absence of alcohol as indicated by the PBT is admissible under the statute, but not the numeric value itself because the legislature has found that the numeric value is “too unreliable” for that purpose. Appellant makes no statutory construction argument or other argument supporting the converse of this issue. An appellate court will not speculate on arguments that could be raised or become an advocate for Appellant. Thus, judgment excluding PBT numeric value is affirmed.
State v. Beck, 2013 WL 5524826 (Mo. App. S.D. Oct. 7, 2013):

Merely crossing the fog line of road does not provide reasonable suspicion to stop vehicle for DWI.

Facts: Officer testified he observed Defendant’s vehicle cross the fog line separating the shoulder of the road from the driving lane, and stopped Defendant to investigate for DWI. Defendant then was arrested for DWI. Defendant filed a motion to suppress evidence of the stop, and prevailed. The State appealed.

Holding: Erratic or unusual driving will provide reasonable suspicion for a stop to investigate DWI. But prior cases have held that merely crossing the fog line does not, by itself, provide such suspicion. The trial court granted the motion to suppress on the basis that Officer only saw vehicle cross the fog line. Even though the State argues that the Officer also saw the car weave in the lane, the trial court apparently did not accept this fact, and appellate court is required to defer to the trial court on factual findings.
State v. Reed, 2013 WL 2285192 (Mo. App. S.D. May 24, 2013):

Even though (1) Officer thought Defendant-Driver’s action in not parking near Officer and waiting in car while waiting to pick someone up from an unrelated traffic stop was “unusual,” and (2) Officer was working on another traffic stop, where Officer failed to seek a search warrant before having a hospital draw Defendant-Driver’s blood, this violated the 4^th Amendment because the fact that alcohol dissipates in blood is not itself an exigent circumstance, and there were not special facts that excused failure to seek a warrant.

Facts: Defendant-Driver was called to pick up another person from an unrelated traffic stop. Defendant stopped and parked about 30 yards from the traffic stop and remained in his car. Officer thought this was “unusual.” Without Defendant’s consent or a warrant, Officer took Defendant to a hospital for a blood draw about two hours later. Defendant was then charged with DWI. He moved to suppress the blood draw.

Holding: The State argues that since alcohol dissipates in blood, this is an exigent circumstance that doesn’t require a warrant. The State also argues that the Officer was conducting another traffic stop and couldn’t get a warrant. However, Missouri v. McNeely, 81 USLW 4250, ___ U.S. ___ (U.S. April 17, 2013), held that the natural metabolism of alcohol does not per se create an exigent circumstance to justify not obtaining a warrant. The correct test is totality of circumstances. The thrust of the State’s case is that the Officer was too busy that night to get a warrant. However, the facts of this case indicate that this was a “routine” DWI case. There were no special facts or exigent circumstances justifying an exception to the warrant requirement. Blood-draw evidence suppressed.
Hasselbring v. Director of Revenue, 2013 WL 411483 (Mo. App. S.D. Feb. 4, 2013):

Holding: Even though Director claimed Driver “refused” to take a breath test, where (1) Driver agreed to take a test, but (2) during the test the machine’s batteries ran out, and (3) Officer said at one point that this would be the only test and then seemed confused about what to do when batteries ran out, trial court did not err in making a “factual finding” that Driver did not refuse another test because at that point a reasonable person would have been confused as to whether they had “refused” a test; although Director met the burden of production by showing Driver didn’t take a further test, Director did not meet the burden of proof because Director did not carry the burden of persuasion to convince the fact-finder to view the facts in a way favorable to that party. Trial court’s reinstatement of license affirmed.

State v. Slavens, No. SD31613 (Mo. App. S.D. 9/12/12):

Sec. 577.010 does not authorize DWI conviction for operating a non-road “dirt bike” on private property in an intoxicated condition.

Facts: Defendant was driving a “dirt bike” on his own private property when he had an accident that resulted in him being injured, resulting in the Highway Patrol being called. His BAC was .226. He was charged and convicted of DWI.

Holding: The elements of DWI under Sec. 577.010 are (1) that the defendant operated a motor vehicle and (2) that he did so in an intoxicated condition. However, the term “motor vehicle” is not defined in the statute. The question is whether the legislature intended to criminalize operating a non-traditional motor vehicle on private property. The rule of lenity requires that all ambiguity in a statute be resolved in a defendant’s favor. There is an ambiguity in Sec. 577.010 in its potential application to situations where a person operates a non-street legal motorized vehicle on private property. Since the statute allows for more than one interpretation, it has to be interpreted in Defendant’s favor so as not to prohibit this. Also, a contrary interpretation would lead to illogical results in that persons who operate golf carts on private golf courses or persons who operate motorized wheelchairs in their homes could be convicted of DWI. The legislature could not have intended these illogical results. Conviction reversed.
Hilkemeyer v. Director of Revenue, No. SD30811 (Mo. App. S.D. 9/15/11):

Holding: Where Driver contended -- and trial court found -- that Officer did not satisfy the 15-minute observation period because Officer was not always looking directly at Driver during the period but was also doing other activities including driving the patrol car and entering data on a computer, the Director is wrong in contending that the only way the breathalyzer results could have been excluded by trial court was if Driver had presented evidence that she smoked vomited, or orally ingested something during the 15-minute period. White v. Director of Revenue, 321 S.W.3d 298 (Mo. banc 2010), held that nothing in Sec. 302.535 creates a presumption that the Director’s evidence establishing a prima facie case is true or shifts the burden to Driver to produce evidence to rebut such a presumption. Prior cases implying a “presumption of validity” were overruled by White. Judgment in favor of Driver affirmed.
State v. Lemons, No. SD30959 (Mo. App. S.D. 8/25/11):

(1) Where State submits Defendant’s “Driver’s Record” to prove prior DWI convictions, the Driver’s Record must specifically identify the convicting court; (2) State need no longer prove that Defendant had counsel or waived counsel in prior DWI convictions, but Defendant may prove that the prior convictions were unconstitutional.

Facts: Defendant was charged with DWI as a “chronic offender” for having four prior DWI convictions. To prove the convictions, the State submitted Defendant’s Missouri “Driver’s Record” which showed that Defendant was convicted “on 4-02-1991 in Arkansas by circuit court.” Defendant claimed he never had such a conviction.

Holding: (1) The Driver Record was insufficient to prove the Arkansas conviction because it did not specifically indentify the convicting court. Some minimal information is necessary to use a Driver Record to prove prior convictions to allow Defendant the opportunity to rebut the conviction. The requirement of court identification for violations of foreign law is included in the Driver License Compact, Sec. 302.600, Article III, so that an aggrieved person would have only one county or city to contact in order to rebut the conviction. Here, the Driver’s Record did not identify a specific Arkansas Circuit Court, but only the entire state of Arkansas. This was insufficient, and the Arkansas conviction should not have been counted as a prior DWI. Case remanded for resentencing as an “aggravated offender” (three priors). (2) On a separate issue, Defendant contends that the State didn’t prove that his prior convictions were with counsel or counsel was waived. However, the DWI statute was amended in 2009 to no longer require proof that the defendant was represented by counsel or waived counsel. Sec. 577.023.1(4) RSMo. Cum. Supp. 2009. However, while the State need not prove this, a Defendant may still prove that the prior convictions were unconstitutional because he did not have counsel, but Defendant has not done that here.
Chamberlain v. Director of Revenue, No. SD30567 (Mo. App. S.D. 4/25/11):

Holding: (1) Even though under Sec. 577.041.4 Driver filed his petition for reinstatement of license in wrong county (because the arrest or stop did not occur there), where Director did not object to improper venue, this issue was waived by Director; and (2) Even though the evidence showed (a) that there was a one-vehicle accident; (b) that one person was injured; (c) the ambulance driver said they were taking the injured person to the hospital; (d) Driver owned the vehicle; and (e) Driver failed sobriety tests at the hospital, the trial court could find that the evidence failed to show probable cause that Driver had been the person who was actually driving the car; appellate
Morse v. Director of Revenue, No. SD30653 (Mo. App. S.D. 4/18/11):

Holding: Where (1) in 2003 Driver had a 90-day license suspension, completed SATOP, filed an SR-22 and paid reinstatement fees; (2) in 2003 Driver received an SIS in her criminal DWI case; and (3) in 2008 Driver’s probation was revoked in her criminal case and her sentence was executed, Driver was not required in 2008 to again complete SATOP, file an SR-22 and pay reinstatement fees because reading Secs. 302.525.4 and 302.540.4 together it is clear that the legislature did not intend for a driver to have to repeat programs based upon the same driving occurrence.

court does not re-weigh the evidence. Judgment reinstating license is affirmed.

State v. Browning, No. WD76144 (Mo. App. W.D. Jan. 6, 2015):

For the horizontal gaze nystagmus (HGN) test to be admissible, the State must prove (1) that the Officer administering the test is adequately trained on how to administer and interpret the test, and (2) that the test was properly administered; failure to comply with the NHTSA Manual on how to administer the test renders it inadmissible (disagreeing with State v. Burks, 373 S.W.3d 1, 6-7 (Mo. App. S.D. 2012)).

Facts: Defendant was convicted of DWI. He challenged admission of the HGN test. The Western District affirms the conviction because of other overwhelming evidence of guilt, but strongly questions the admissibility of the HGN test in a lengthy footnote 3.

Holding: The HGN test, unlike other standard field sobriety tests, is an exclusively scientific test. Nystagmus, the involuntary jerking of the eyes, has many potential causes. The ability to reliably differentiate between these causes to permit an inference of intoxication requires scientific testing; for this reason, proponents of the HGN test were required to establish the test’s scientific reliability under Frye. To be admissible, the State must show (1) that the Officer who administered the test was adequately trained on how to administer and interpret the test and (2) that the test was properly administered. The procedures for administering the test are set out in the NHTSA’s DWI Detection and Standardized Field Sobriety Testing Manual. Where the administering Officer fails to substantially comply with proper testing procedures, most jurisdictions treat the issue as affecting the weight of HGN evidence, not its admissibility. In Missouri, however, proper administration of the HGN test is a foundational requirement. The Southern District, in State v. Burks, 373 S.W.3d 1, 6-7 (Mo. App. S.D. 2012) held that challenges to the administration of the HGN test go to the weight of the test, not its admissibility. “We question that holding. If applied in every case where an officer has failed to ‘properly administer’ the HGN test, the holding in Burks will effectively swallow and negate the State’s burden to establish the foundational requirement that the HGN test was properly administered.” We believe that “material deviations from the testing procedures set forth in the NHTSA Manual will require a trial court to deny admission of HGN test results.”

Concurring opinion: The concurring opinion sets forth in detail 10 steps that must be followed for an HGN test to be properly administered. The opinion points out that the Officer here, despite attending many trainings, “had very little grasp of the proper way to administer and score the field sobriety tests.” “[H]e acknowledged … that he had never bothered to even read the NHSTA manual, which was admitted into evidence and which was the source of his training.” Without proper administration, the HGN test loses its scientific reliability and becomes irrelevant to the issues before the court. The State failed to lay a proper foundation here, and the HGN evidence should have been excluded.
Ayler v. Director of Revenue, 2014 WL 4065092 (Mo. App. W.D. Aug. 19, 2014):