Rowan v. Director of Revenue

870 S.W.2d 261, 1994 Mo. App. LEXIS 247, 1994 WL 41761
CourtMissouri Court of Appeals
DecidedFebruary 15, 1994
DocketNo. WD 47637
StatusPublished
Cited by2 cases

This text of 870 S.W.2d 261 (Rowan 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
Rowan v. Director of Revenue, 870 S.W.2d 261, 1994 Mo. App. LEXIS 247, 1994 WL 41761 (Mo. Ct. App. 1994).

Opinion

PER CURIAM.

This appeal involves judicial review of the revocation of Richard Randall Rowan’s driving privileges for refusing breathalyzer testing under § 577.041, RSMo Supp.1992. After a hearing, the trial judge ordered reinstatement of Rowan’s driving privileges. The Director of Revenue appeals. Rowan seeks dismissal of the appeal, claiming untimely filing of the notice of appeal.

We deny Rowan’s motion to dismiss the appeal. We reverse the trial judge’s order, and remand for a new trial.

Motion To Dismiss The Appeal

On February 11, 1993, immediately after the hearing, the trial judge announced a decision for Rowan, and asked Rowan’s counsel to prepare a proposed order. The trial judge stated, “I’ve made my order effective today.” The docket entry made on the same date reflected the announced decision, and noted that counsel would forward an order. On February 19, 1993, the order signed by the judge was filed with the court. That order was mailed to the Director in Jefferson City. On March 30, 1993, the Director filed the notice of appeal.

Rowan argues that the February 11th docket entry constituted the final judgment for purposes of timing the appeal. According to Rowan’s calculations, the Director should have filed the notice of appeal by March 23, 1993. Rowan urges that we dismiss the Director’s appeal for untimely filing.

We disagree. A docket entry cannot constitute a final judgment when the [262]*262judge requests counsel to prepare a formal order, and when all parties contemplate the entry of a formal, final order. In re Marriage of McCoy, 818 S.W.2d 322, 323-24 (Mo.App.1991); Grantham v. Shelter Mut. Ins. Co., 721 S.W.2d 242, 245 (Mo.App.1986). Here, although the judge stated on the record that his order was effective immediately, all the parties contemplated the filing of a formal order. Despite the court’s reference to his order being “effective immediately,” the docket entry indicated that a formal order would be prepared, and both parties understood that. The court mailed the formal order to the Director as its final determination. Therefore, the February 19th order, not the docket entry, triggered timing of the notice of appeal. Under Rule 81.05(a), that order became a final judgment for purposes of appeal thirty days after its entry. Complying with Rule 81.04(a), the Director filed the notice of appeal on March 30,1993, within ten days after the judgment became final. We deny Rowan’s motion to dismiss the appeal.

Judicial Review of Breathalyzer Refusal Revocation

In judicial review of breathalyzer refusal cases, the state bears the burden of proving that (1) the driver was arrested; (2) the arresting officer had reasonable grounds to believe that the driver was driving while in an intoxicated condition; and (3) the driver refused testing. Section 577.041.2; James v. Director of Revenue, 767 S.W.2d 604, 612 (Mo.App.1989). If the state fails to prove any of the three criteria, the judge must order reinstatement. Section 577.041.3; Gelsheimer v. Director of Revenue, 845 S.W.2d 107, 108 (Mo.App.1993). This appeal concerns only a portion of the second criterion: whether the officer had reasonable grounds for believing Rowan to be in an intoxicated condition.

At the hearing the state called two witnesses, and Rowan’s counsel cross-examined those witnesses. Rowan’s motion for judgment at the close of the Director’s evidence was granted. A summary of the evidence follows.

During the early morning hours of December 19, 1992, Deputy Sheriff David Kissee1 was patrolling near Barry Road and Interstate 29 in Platte County. Carl Reineke accompanied the deputy as a ride-along observer. Reineke first saw a car traveling at a quick pace through the parking lot of a bar, and alerted Deputy Kissee. Both men watched as the car left the parking lot without stopping and turned without signaling. When the car entered the ramp of 1-29, it “spun out” diagonally with its rear wheels on the shoulder and its front wheels on the roadway.

After stopping that car, Deputy Kissee approached the driver. Rowan, the driver and sole occupant, rolled down the window. Kissee, according to his testimony, detected a strong odor of alcohol. Rowan had difficulty removing his wallet from his pocket to produce his driver’s license, and could not find his proof of insurance. When asked about drinking, Rowan replied that he had not been speeding and that the officer had no reason to stop him. Kissee testified that Rowan eventually acknowledged that he had consumed a few beers. Rowan slurred his speech. Rowan refused to submit to field sobriety testing. Kissee then placed Rowan under arrest. After advising Rowan of his arrest, Deputy Kissee asked Rowan to step out of the car and to place his hands on the roof. The deputy assisted Rowan in getting out. According to the officer, Rowan moved very slowly. Once outside, according to the deputy, Rowan swayed slightly and moved slowly. While escorting Rowan to the patrol ear, Deputy Kissee stated that he noticed that Rowan exerted some pressure on Kis-see’s arm, as if he had needed to stabilize himself. The alcohol influence report prepared by Kissee contained observations by Kissee that Rowan had a strong odor of alcohol on his breath, that his attitude was uncooperative, that his ability to follow instructions was poor, and that his speech was slurred. Nothing was noted on the report about balance, walking or turning.

Standing outside the patrol car, Reineke observed the encounter between Deputy Kis-see and Rowan, but Reineke could not hear [263]*263their conversation. From his vantage point, Reineke could not see whether Rowan needed help in getting out of the car. Reineke saw Rowan place his hands on the roof but saw nothing unusual from his vantage point. Reineke stated he did not notice Rowan staggering or leaning toward the deputy as they walked to the patrol car. Inside the patrol car, where Rowan repeatedly refused breathalyzer testing, Reineke noticed that Rowan’s breath smelled of alcohol and that Rowan’s speech was slurred.

After Deputy Kissee and Reineke testified, the state rested. Rowan moved for judgment at the close of the Director’s case. The Court granted the motion. Offering reasons for his decision, the judge stated that neither witness had expressed any opinion on Rowan’s intoxication at the time of the stop:

[Tjhere was not testimony or evidence elicited from the officer that he had any opinion as to whether or not Mr. Rowan was intoxicated, nor was there any evidence elicited from the witness as to whether or not he had an opinion as to whether Mr. Rowan was intoxicated at the time or an opinion as to whether Mr. Rowan was intoxicated at the time of the stop. For that reason, the court finds the issues in favor of the petitioner against the Director of Revenue.

The “point relied on” in the Director’s brief is an inartful attempt to argue that the judgment is against the weight of the evidence, or that the judgment is not supported by substantial evidence.

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Related

McMaster v. Lohman
941 S.W.2d 813 (Missouri Court of Appeals, 1997)
Bennett v. Director of Revenue
889 S.W.2d 166 (Missouri Court of Appeals, 1994)

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Bluebook (online)
870 S.W.2d 261, 1994 Mo. App. LEXIS 247, 1994 WL 41761, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rowan-v-director-of-revenue-moctapp-1994.