JACOB DANIEL SIMON v. DIRECTOR OF REVENUE, STATE OF MISSOURI, Respondent-Respondent. ( 2016 )

JACOB DANIEL SIMON, )
)
Petitioner-Appellant, )
)
vs. ) No. SD34304
)
DIRECTOR OF REVENUE, ) Filed: October 27, 2016
STATE OF MISSOURI, )
)
Respondent-Respondent. )
APPEAL FROM THE CIRCUIT COURT OF LACLEDE COUNTY
Honorable Larry W. Winfrey Jr.
AFFIRMED
Jacob Daniel Simon ("Driver") appeals from the trial court's judgment
affirming the administrative revocation of his driver's license. Driver argues it
was against the weight of the evidence for the trial court to find Driver did not
make a statutorily valid refusal to submit to a breath alcohol test. Driver's
argument is without merit, and the trial court's judgment is affirmed.
Factual and Procedural Background
On August 1, 2015, Missouri State Park Ranger, Terry Shaw ("Ranger
Shaw"), stopped Driver in Bennett Spring State Park for driving while
intoxicated. During the course of the stop, Driver stated he had been drinking,
showed several indicators of intoxication on each field sobriety test administered
and refused to complete a portable breath test. Driver stated, "Well, I'm not
going to blow. I'm not going to blow at the jail either. You can just arrest me
then." At the jail, Ranger Shaw read Driver the provisions of the implied consent
law from a form, and Driver again refused to take a breath test. Ranger Shaw
issued Driver a revocation notice for refusal to submit to the breath alcohol test.
Driver filed a petition for review of the revocation. A trial was held on
December 9, 2015, and the trial court upheld the revocation. Driver appeals.
Discussion
Driver's sole point on appeal is an against-the-weight-of-the-evidence
challenge alleging Driver did not have sufficient information to make a statutorily
valid refusal to submit to the breath test. He argues he was not advised of the
purpose of the test because Ranger Shaw failed to check one box on the alcohol
influence report form. The box that remained unchecked was located next to the
statement which informs the suspect that the purpose of the breath test is to
determine the alcohol content of the suspect's blood. For this reason, Driver
argues his refusal was not a valid statutory refusal. Driver's argument ignores the
standard of review and ignores Ranger Shaw's testimony.
"In appeals from a court-tried civil case, the trial court's judgment will be
affirmed 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." White v.
Director of Revenue, 321 S.W.3d 298, 307-08 (Mo. banc 2010). "When the
facts relevant to an issue are contested, the reviewing court defers to the trial
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court's assessment of the evidence." Id. at 308. "A trial court is free to disbelieve
any, all, or none of that evidence." Id.
Even though an against-the-weight analysis requires some consideration
of evidence contrary to the result below, the appellate court still must defer to the
credibility determinations made by the trial court. Houston v. Crider, 317
S.W.3d 178, 186 (Mo. App. S.D. 2010). Such an argument requires the appellant
to:
(1) identify the trial court's finding he seeks to challenge as against
the weight of the evidence; (2) identify all favorable evidence
submitted during trial that would support that finding; (3) identify
evidence contrary to the trial court's finding; and (4) explain why,
in light of the whole record, the supporting evidence is so lacking in
probative value that the trier of fact should have reached a different
conclusion.
O'Gorman & Sandroni, P.C. v. Dodson, 478 S.W.3d 539, 544 (Mo. App.
E.D. 2015). "Where the appellant fails to follow this framework, the appellant's
argument is 'analytically useless and provides no support' for his or her
challenge." Id. (quoting In re Marriage of McDaniel, 419 S.W.3d 828, 833
(Mo. App. S.D. 2013)).
The issues in a revocation case based on a refusal to submit to a chemical
test are: "(1) whether or not the person was arrested or stopped; (2) whether the
officer had 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[.]" Neff v. Director of Revenue, 437
S.W.3d 394, 396 (Mo. App. S.D. 2014) (quoting Hinna v. Director of
Revenue, 77 S.W.3d 616, 620 (Mo. banc 2002)). "Should the trial court
determine any issue not to be in the affirmative, the Director shall be ordered to
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reinstate the driver's license." Mayfield v. Director of Revenue, 100 S.W.3d
847, 849 (Mo. App. S.D. 2003). As previously stated, Driver concedes the only
issue here is whether Driver refused to submit to a breath test.
The implied consent law demands that an arrestee receive certain
information prior to being asked to submit to a chemical test to determine blood
alcohol content. § 577.041.1;1 Mayfield, 100 S.W.3d at 850. Specifically,
[t]he request of the officer shall include the reasons of the officer for
requesting the person to submit to a test and also shall inform the
person that evidence of refusal to take the test may be used against
such person and that the person's license shall be immediately
revoked upon refusal to take the test.
§ 577.041.1. Thus, "[r]evocation is conditioned upon an officer making a
'statutorily sufficient "request"' that a driver submit to chemical testing."
Mayfield, 100 S.W.3d at 850 (quoting McMaster v. Lohman, 941 S.W.2d
813, 816 (Mo. App. W.D. 1997)). "No refusal is valid if this statutorily necessary
information is not conveyed." Id. (quoting Hinton v. Director of Revenue,
990 S.W.2d 207, 208 (Mo. App. W.D. 1999)).
Nevertheless, "[n]o particular words need to be used by the officer so long
as he accompanies the request with the requirements of the statute as to the
reasons for the request and the possibility of license revocation if the request is
refused." Sell v. Goldberg, 601 S.W.2d 665, 666 (Mo. App. S.D. 1980). For
example, an inference that the officer conveyed the necessary information may be
inferred from the fact that the officer explained the test procedure to the driver.
Corum v. McNeill, 716 S.W.2d 915, 917 (Mo. App. E.D. 1986).
1 All statutory references are to RSMo Cum. Supp. (2013).
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Here, there was ample evidence from which the trial court could
reasonably infer Ranger Shaw read Driver the statement that the purpose of the
test was to determine the alcohol content of Driver's blood. At trial, when
discussing the alcohol influence report, Ranger Shaw explained he "read [Driver]
[the] Implied Consent." The prosecutor then asked Ranger Shaw whether he
used the alcohol influence report form, and Ranger Shaw replied, "I explained to
him, you know, went over the AIR, read him Implied Consent. . . . There's so
many things on that form, I make sure I go from one end to the other of it[.]" He
also testified, "I read every single thing on those pages." During the prosecutor's
questioning, Ranger Shaw was further asked:
Q. You read word for word; is that right?
A. Yes, yes.
Q. Okay. When you get finished, last question, having been
informed of the reasons for the requesting the test, will you
take the test, what's he say?
A. He says he would not.
After Ranger Shaw finished testifying, the trial court received Exhibit A
which included a copy of the alcohol influence report. The portion of the alcohol
influence report which dealt with the implied consent warning is shown below:
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Together, Ranger Shaw's testimony and the form allow an inference that Driver
was informed of the purpose of the test.
Defendant relies on the fact that Ranger Shaw answered "Yes" when the
prosecutor asked whether Ranger Shaw read Driver "every mark that [he]
checked on page 2 of" the alcohol influence report. Defendant claims this
testimony, combined with the fact that the box next to the assertion that the
purpose of the test was to determine Driver's blood alcohol content was not
checked, shows Driver was not actually informed the purpose of the test was to
determine Driver's blood alcohol content. However, Ranger Shaw testified he did
read "every single thing on those pages[,]" and the trial court was entitled to
believe this testimony. That evidence is favorable to the trial court's finding so
without accounting for that evidence and explaining how it lacks probative value,
Driver's argument is "analytically useless." See O'Gorman, 478 S.W.3d at 544.
The trial court's finding was not against the weight of the evidence.
Decision
The trial court's judgment is affirmed.
MARY W. SHEFFIELD, C.J. – OPINION AUTHOR
JEFFREY W. BATES, P.J. – CONCURS
DON E. BURRELL, J. – CONCURS
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