Venker v. Director of Revenue

Missouri Court of Appeals

Venker v. Director of Revenue

86 S.W.3d 73, 2002 Mo. App. LEXIS 1546, 2002 WL 1541651

CourtMissouri Court of Appeals

DecidedJuly 16, 2002

DocketNo. ED 80251

StatusPublished

This text of 86 S.W.3d 73 (Venker 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

Venker v. Director of Revenue, 86 S.W.3d 73, 2002 Mo. App. LEXIS 1546, 2002 WL 1541651 (Mo. Ct. App. 2002).

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Opinion

LAWRENCE G. CRAHAN, Judge.

Director of Revenue (“Director”) appeals the judgment of the Circuit Court of St. Louis County reinstating Andrew E. Venker’s (“Driver”) driving privileges under the “zero tolerance” law. The trial court found notice to Driver was insufficient and, therefore, fatally defective. We reverse and remand.

Driver was stopped for speeding on November 11, 2000. Driver was 17 at the time of the stop. Officer Wandless noted a strong smell of alcohol on Driver’s breath. The officer performed four field sobriety tests: the alphabet test, the one-leg stand, the walk-and-turn, and gaze nystagmus. Driver failed the walk-and-turn, the one-leg stand, and the gaze nystagmus tests. Driver was transported to the Glendale Police Department. Driver consented to a breath test which yielded results of .029% blood alcohol level. Driver signed Missouri Department of Revenue form “Notice of Suspension/Revocation of Your Driving Privilege” while he was in custody. Director’s sole point on appeal asserts the trial court erred in holding that the notice to driver was insufficient.

Our review of the trial court’s judgment is governed by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). Therefore, we must affirm the judgment 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. Id. at 32. However, we are not required to defer to the trial court’s findings when the evidence is uncontroverted and the case is virtually one of admitting the facts or when the evidence is not in conflict. Pendergrass v. Director of Revenue, 4 S.W.3d 599, 601 (Mo.App.1999).

The pertinent statute in this case is section 302.520(2) RSMo 2000¹ which states in part: “... [wjhen the officer takes possession of a valid driver’s license issued by this state, the officer ... shall issue a temporary permit which ... shall also give the person arrested a notice which shall inform the person of all rights and responsibilities pursuant to sections 302.500 to 302.540.” This court recently dealt with the interpretation of this statute in Whitelaw v. Director of Revenue, 73 S.W.3d 731(Mo.App.2002). In Whitelaw, a 16-year-old stopped for a traffic violation was later found to have a blood alcohol level of .061%. She signed the same form used in this case while in custody. This court held that this notice when given while the offender was in custody was sufficient. Id. at 735. Accordingly, we reverse the judgment for the reasons set forth in Whitelaw and remand for reinstatement of the suspension.

SHERRI B. SULLIVAN, P.J., and LAWRENCE E. MOONEY, J., concurs.

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LAWRENCE G. CRAHAN, Judge.

Director of Revenue (“Director”) appeals the judgment of the Circuit Court of St. Louis County reinstating Andrew E. Venker’s (“Driver”) driving privileges under the “zero tolerance” law. The trial court found notice to Driver was insufficient and, therefore, fatally defective. We reverse and remand.

Driver was stopped for speeding on November 11, 2000. Driver was 17 at the time of the stop. Officer Wandless noted a strong smell of alcohol on Driver’s breath. The officer performed four field sobriety tests: the alphabet test, the one-leg stand, the walk-and-turn, and gaze nystagmus. Driver failed the walk-and-turn, the one-leg stand, and the gaze nystagmus tests. Driver was transported to the Glendale Police Department. Driver consented to a breath test which yielded results of .029% blood alcohol level. Driver signed Missouri Department of Revenue form “Notice of Suspension/Revocation of Your Driving Privilege” while he was in custody. Director’s sole point on appeal asserts the trial court erred in holding that the notice to driver was insufficient.

Our review of the trial court’s judgment is governed by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). Therefore, we must affirm the judgment 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. Id. at 32. However, we are not required to defer to the trial court’s findings when the evidence is uncontroverted and the case is virtually one of admitting the facts or when the evidence is not in conflict. Pendergrass v. Director of Revenue, 4 S.W.3d 599, 601 (Mo.App.1999).

The pertinent statute in this case is section 302.520(2) RSMo 2000¹ which states in part: “... [wjhen the officer takes possession of a valid driver’s license issued by this state, the officer ... shall issue a temporary permit which ... shall also give the person arrested a notice which shall inform the person of all rights and responsibilities pursuant to sections 302.500 to 302.540.” This court recently dealt with the interpretation of this statute in Whitelaw v. Director of Revenue, 73 S.W.3d 731(Mo.App.2002). In Whitelaw, a 16-year-old stopped for a traffic violation was later found to have a blood alcohol level of .061%. She signed the same form used in this case while in custody. This court held that this notice when given while the offender was in custody was sufficient. Id. at 735. Accordingly, we reverse the judgment for the reasons set forth in Whitelaw and remand for reinstatement of the suspension.

SHERRI B. SULLIVAN, P.J., and LAWRENCE E. MOONEY, J., concurs.

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86 S.W.3d 73, 2002 Mo. App. LEXIS 1546, 2002 WL 1541651, Counsel Stack Legal Research, https://law.counselstack.com/opinion/venker-v-director-of-revenue-moctapp-2002.

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