Witherwax v. Director of Revenue

160 S.W.3d 431, 2005 Mo. App. LEXIS 577, 2005 WL 887139
CourtMissouri Court of Appeals
DecidedApril 19, 2005
DocketNo. WD 64006
StatusPublished

This text of 160 S.W.3d 431 (Witherwax 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
Witherwax v. Director of Revenue, 160 S.W.3d 431, 2005 Mo. App. LEXIS 577, 2005 WL 887139 (Mo. Ct. App. 2005).

Opinion

VICTOR C. HOWARD, Judge.

Director of Revenue (“the Director”) appeals from a judgment in the Circuit Court of Clay County reinstating Respondent Timothy Witherwax’s (‘Witherwax”) driving privileges that were revoked pursuant [432]*432to section 577.0411 for failing to submit to a breathalyzer test. In her sole point on appeal, the Director argues the trial court erred in reinstating Witherwax’s driving privileges, because the trial court’s judgment is against the weight of the evidence and unsupported by substantial evidence in that the officer had reasonable grounds to believe Witherwax was driving while intoxicated. For the reasons explained below, we affirm the judgment of the trial court.

Background

The Director revoked Witherwax’s driver’s license for one year on July 11, 2003, for refusal to submit to a chemical test. On July 23, 2003, Witherwax filed a petition to review the revocation in the Circuit Court of Jackson County. After Wither-wax’s motion to change venue was sustained, the case was tried before the Circuit Court of Clay County in a bench trial on February 23, 2004.

Section 577.041.4 provides, in relevant part, that the trial court:

[Sjhall determine only:
(1)Whether or not the person was arrested or stopped;
(2) Whether or not the arresting officer had:
(a) reasonable grounds to believe that the person was driving a motor vehicle while in an intoxicated or drugged condition; ... and
(3) Whether or not the person refused to submit to the test.

Only the second determination regarding reasonable grounds is at issue in this appeal.

“This court reviews the evidence supporting the circuit court’s judgment, as well as all reasonable inferences drawn from such evidence, as true.” Kimber v. Dir. of Revenue, 817 S.W.2d 627, 630 (Mo.App. W.D.1991). “Any evidence or infer ences that are contrary to the circuit court’s judgment are disregarded.” Id. With this standard as our guide, we review the evidence.

. On June 11, 2003, at approximately 11:30 p.m., Kansas City policeman Christopher Toigo (“Toigo”) was driving southbound on North Oak Trafficway when he observed a gray Honda Accord stopped on the right-hand shoulder.2 There was a female leaning through the passenger window, and Toigo observed the driver and the female arguing. Toigo activated the red fights of his police cruiser and went to check the Honda Accord. Toigo believed a disturbance had occurred because the female was crying and appeared emotional and upset, and Witherwax confirmed that a verbal argument had occurred.

When Toigo approached the car, the female started walking southbound on North Oak Trafficway. Toigo asked the female to come back, but she refused, so Toigo sent another police car to detain her. Toi-go then contacted the driver who identified himself to be Timothy Witherwax. With-erwax’s eyes were glassy and watery, and he acted confused about why he had been stopped. Toigo thought Witherwax appeared upset and could have been crying. Toigo could also smell a strong odor of alcohol on Witherwax’s person.. There was no evidence that the odor was coming from his breath, and Witherwax apparently was never asked if he had been drinking.

[433]*433When Toigo ran Witherwax’s driver’s license through the police dispatch, it indicated Witherwax had three outstanding warrants for parking violations in Kansas City. Witherwax was placed under arrest for the warrants and was transported back to the North Patrol Division. Toigo administered three field sobriety tests: (1) the gaze nystagmus, (2) the one-leg stand, and (3) the walk and turn. The gaze test was done at the scene, and the other two tests were done at the station.

Toigo indicated in his report that With-erwax failed the gaze nystagmus test. Though unrelated to the test, Toigo did note that Witherwax’s pupils were “normal.”

For the one-leg stand test, Witherwax was instructed to stand on one leg by lifting his foot off the ground until being told to put it down. Witherwax was able to stand on his leg for approximately 24 or 25 counts without using his arms to balance. During the one-leg stand test, With-erwax felt pain in his leg. Witherwax had had eight knee surgeries prior to June 11, 2003, and he explained this to Toigo. Witherwax asked Toigo when he could put his foot down. Toigo told Witherwax to wait until he was told. It is not clear how long Toigo intended for Witherwax to remain on one leg; but when Witherwax put his foot down before being told, Toigo determined that the one-leg stand test was over.

The walk and turn test consists of nine heel-to-toe steps down a straight line, followed by several small steps to turn around, and continuing with nine more heel-to-toe steps. Officer Toigo’s report indicated Witherwax successfully completed the test. Witherwax was able to balance while listening to instructions, he did not stop to balance himself, and Toigo agreed he was able to touch heel-to-toe “perfectly.” Witherwax also kept his balance while walking, did not use his arms to stay balanced, and did not walk too far or too short. The walk and turn test is composed of eight separate physical criteria. Toigo agreed that Witherwax passed “100 percent” of the physical criteria in the walk and turn test. Witherwax denied Toigo’s claim that he started the test before receiving complete instructions. Toi-go also noted that Witherwax’s pupils were in normal condition, his clothing was neat, and he used no profanity. Witherwax fully cooperated with Toigo.

After completing the walk and turn test and the one-leg stand test, Witherwax .believed he had satisfactorily completed the tests. Toigo denied that Witherwax’s performance on the walk and turn test was inconsistent with Toigo’s observations that Witherwax was wobbling and stumbling when he got out of the car. Witherwax denied that he was wobbling, had sagging knees, or was stumbling. Toigo did not know how much Witherwax drank, what Witherwax had drunk, or when he had his last drink before his arrest. Toigo did not observe any open containers in the car, and he did not arrest Witherwax on the scene for drunk driving. Officer Toigo said the only reason for arresting Wither-wax on the scene was parking ticket warrants.

After the field tests, Toigo asked With-erwax to take a breathalyzer test. With-erwax did not believe he was under the influence of alcohol at the time, and he did not believe there was any rational reason to take a breathalyzer test. After Toigo requested that Witherwax take a breathalyzer test, Witherwax requested an attorney. When an attorney could not be reached, Witherwax attempted to contact a bondsman. When Witherwax could not reach an attorney or a bondsman within twenty minutes, he was asked again to take a breathalyzer test. Witherwax re[434]*434fused to take a breathalyzer test because when he was initially arrested, there was no mention of his driving while intoxicated. Witherwax was not aware that a breathalyzer test is the best method for determining whether a person is under the influence of alcohol.

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Related

Hawk v. DIRECTOR OF REVENUE, STATE OF MO.
943 S.W.2d 18 (Missouri Court of Appeals, 1997)
Kimber v. Director of Revenue
817 S.W.2d 627 (Missouri Court of Appeals, 1991)
Soval v. Director of Revenue
2 S.W.3d 854 (Missouri Court of Appeals, 1999)

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Bluebook (online)
160 S.W.3d 431, 2005 Mo. App. LEXIS 577, 2005 WL 887139, Counsel Stack Legal Research, https://law.counselstack.com/opinion/witherwax-v-director-of-revenue-moctapp-2005.