Kearney v. Director of Revenue

999 S.W.2d 310, 1999 Mo. App. LEXIS 1336, 1999 WL 638242
CourtMissouri Court of Appeals
DecidedAugust 24, 1999
DocketNo. ED 74969
StatusPublished
Cited by2 cases

This text of 999 S.W.2d 310 (Kearney v. Director of Revenue) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kearney v. Director of Revenue, 999 S.W.2d 310, 1999 Mo. App. LEXIS 1336, 1999 WL 638242 (Mo. Ct. App. 1999).

Opinion

PAUL J. SIMON, Presiding Judge.

Director of Revenue (Director), appeals from a final judgment of the Circuit Court of St. Louis County setting aside the suspension of the driving privilege of Stephen Patrick Kearney (Driver) after a trial de novo pursuant to section 302.535 RSMo (Cum.Supp.1997).

On appeal, Director contends that the trial court erred by: (1) setting aside the Director’s action against Driver’s driving privilege under section 302.505 RSMo 1994 (all further references will be to RSMo 1994 unless otherwise indicated) because the evidence showed that the arresting officer had probable cause to arrest Driver for driving while intoxicated and that his blood alcohol content (BAC) was at least .10 percent by weight; and (2) sustaining Driver’s hearsay objection and striking the testimony of the arresting officer concerning eyewitness reports of Driver’s erratic driving because this evidence was admissible to prove that the officer had probable cause to arrest Driver for driving while intoxicated in that (a) an arresting officer may rely on hearsay from eyewitnesses to establish probable cause for arrest, and (b) this evidence was not offered for the truth of the matter asserted but to explain the arresting officer’s reasonable belief that probable cause existed to arrest Driver. We affirm.

In reviewing a court tried case, we affirm the judgment of the trial court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.banc 1976).

The record on appeal shows that at approximately 11:50 p.m. on the evening of December 22, 1997, St. Louis County Police Officer Melissa Varga responded to the scene of an accident at the area of the intersection of Baumgartner and Lemay Ferry Road in St. Louis County. Upon arriving at the scene, Varga observed Mehlville fire protection district personnel extricating Driver from a blue vehicle that was lodged underneath the bed of a tractor-trailer. After being pulled from the wreckage, Driver was placed in an ambulance where Varga made contact with him. She observed that Driver sustained injuries to his forehead and facial area and was bleeding from the same. Varga testified that Driver admitted he had been driving the vehicle. Varga further testified that Driver’s speech was slurred, his [312]*312eyes were watery, bloodshot, glassy and dilated, that his clothing was mussed and that she noticed a moderate odor of alcohol on his breath. Driver responded “No” when Varga asked him whether he had been drinking. No field sobriety tests were administered at the scene of the accident. Varga testified that it was at this time that she asked Driver “what had happened.” She initially testified that Driver told her that he was making a right turn onto Lemay Ferry from Baumgartner, but the truck was in his lane, which caused the vehicles to collide. Later, upon being recalled by Driver, Varga voluntarily changed her testimony, stating that “Driver said he was making a left-hand turn... when he was actually making a right-hand turn.” After her initial contact with Driver, Varga spoke to several eyewitnesses, including the driver of the other vehicle involved in the accident. All of these eyewitnesses stated that Driver left the roadway for an unexplainable reason, re-entered the roadway, changed lanes and struck the trailer.

Driver was transported to St. Anthony’s Medical Center’s emergency room where Varga placed him under arrest for driving while intoxicated, pursuant to St. Louis County Ordinance 1212.010, and advised him of his rights per Miranda. Varga then asked Driver to submit to a blood test, which he did after being advised of the Missouri Implied Consent law. Driver’s blood was drawn immediately after he signed the consent form. Varga observed phlebotomist Sandy Nickels draw two tubes of Driver’s blood. The testimony of Nickels and Varga is in dispute concerning from which arm the blood was taken. Before releasing Driver so he could be admitted to St. Anthony’s for observation, Varga issued him a citation for violating St. Louis County Ordinance 1212.040 for failing to drive within a single lane and for violating St. Louis County Ordinance 1212.010a for driving while intoxicated. Victor Granat, lead chemist for the St. Louis County Police Department Crime Laboratory, testified that the blood alcohol analysis on the sample taken from Driver showed Driver’s BAC was .33%.

Driver filed a timely petition for an administrative hearing under section 302.530. On May 12, 1998, the hearing officer sustained the revocation of Driver’s driving privilege. Driver filed a timely application for trial de novo pursuant to section 302.535 RSMo (Cum.Supp.1997). At the trial de novo on July 28, 1998 the judgment of Judge Clifford of the Circuit Court adopted the findings and recommendations of Commissioner Greaves and reinstated Driver’s driving privileges. The only reason for the reinstatement given by the commissioner, and subsequently ordered by the trial court, was that “The only evidence of probable cause to believe intoxicated, moderate odor, was not sufficient to establish prob. cause. The other observations noted could have also been the result of injuries from the auto accident.”

In his first point on appeal, Director contends that the trial court erred in setting aside the Director’s action against Driver’s driving privilege under section 302.505 because the evidence showed that the arresting officer had probable cause to arrest Driver for driving while intoxicated and that his BAC was at least .10 percent by weight.

Director argues that the eyewitness reports of Driver’s erratic driving, combined with Varga’s detection: (1) of a moderate odor of alcohol on Driver’s breath; (2) that Driver’s speech was slurred; and (3) that Driver’s eyes were watery, bloodshot, glassy and dilated, amount to evidence sufficient to establish probable cause to arrest. Director further argues that Driver’s blood test showed that his BAC was over the legal limit and that Driver presented no evidence to dispute that result.

Driver argues in his brief that the trial court’s judgment should be affirmed because it is reasonable to infer that a credibility determination was made at trial. Driver contends that Director failed to [313]*313show that the site from which Driver’s blood was drawn was not otherwise contaminated by his blood. The testimony of Nickels is in dispute with that of Varga concerning which of Driver’s arms was injured, and from which arm his blood was taken. Varga’s testimony is consistent with the police report she prepared immediately after the incident. Varga used this report to refresh her recollection at trial. Nickels testified that drawing blood from a contaminated area could cause an inaccurate result. Driver cites Diehl v. Director Revenue, 836 S.W.2d 94 (Mo.App. E.D. 1992) for the proposition that we should review the evidence supporting the trial court’s judgment, as well as all reasonable inferences drawn from such evidence, as true. Accordingly, he argues that the standard of review requires us to grant deference to the result reached by trial court.

Director contended at oral argument that the evidence is not in conflict because Driver did not put on any witnesses to challenge or contradict Director’s evidence.

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Related

Phelps v. Director of Revenue
47 S.W.3d 395 (Missouri Court of Appeals, 2001)
Molthan v. Director of Revenue
32 S.W.3d 643 (Missouri Court of Appeals, 2000)

Cite This Page — Counsel Stack

Bluebook (online)
999 S.W.2d 310, 1999 Mo. App. LEXIS 1336, 1999 WL 638242, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kearney-v-director-of-revenue-moctapp-1999.