City of Bellefontaine Neighbors v. Meziere , 1996 Mo. App. LEXIS 1111 ( 1996 )

KAROHL, Judge.

Francis N. Meziere appeals after he was court-tried and sentenced on the charge of driving while intoxicated in violation of Ordinance No. 1518 of the City of Bellefontaine Neighbors Code. He contends (1) the trial court erred in allowing the City of Bellefon-taine Neighbors (City) to amend a deficient information and proceed to trial on that information; (2) the amended charge of “Drive under the influence of alcohol (DUI .025)” in violation of Ordinance 1518 is not a violation of any provisions of that ordinance; and, (3) there was no evidence to support a finding he was guilty beyond a reasonable doubt of the charged offense.

We find the information is ambiguous as to whether it was intended to charge Meziere with Driving Under the Influence, Driving While Intoxicated, Ordinance No. 1518(2), or Excessive Blood Alcohol, Ordinance No. 1518(3). Meziere was charged in the municipal court with “Drive Under The Influence of Alcohol (DUI .025)” “in violation of ordinance “15.” ” He was charged in the circuit court, after amendment, with Driving Under the Influence, in violation of City of Bellefontaine Neighbors Ordinance “1518.”

Meziere was stopped at a sobriety checkpoint at 9309 Bellefontaine Road. An officer became suspicious because Meziere appeared confused and “unsure which way to go.” He testified there was a “moderate odor” of alcohol and “possible” involvement of alcohol. The evidence included a police report which described the odor of alcohol as “Faint.” His clothing was neat and he was polite. The officer asked him to step out of the ear. He conducted various field sobriety tests. Mezi-ere did not perform satisfactorily and was immediately placed under arrest. The police transported him to the police station where he was processed and given a breath test. His blood-alcohol content was .025. He was released after processing.

The officer issued a “Uniform Complaint and Summons” for “driv[ing] under the influence of alcohol (DUI .025).”¹ The prosecutor did not sign the information at the time of filing. Also, the original information cited the ordinance code which Meziere violated as “15”.

The information charging Meziere with driving under the influence was first tried in the Municipal Court of the City of Bellefontaine Neighbors. The municipal court tried Meziere on the charge of driving under the influence. It conducted the trial without the benefit of a signed information and without reference to the proper ordinance. The municipal judge found him guilty of “drive under the influence of alcohol.” He requested a trial de novo on this charge before the circuit court. Because this was a de novo trial the charge tried in the circuit court must be the same as the charge tried in the municipal court.

On the day of trial the circuit court granted City leave to amend by interlineation, at which time the prosecutor signed the information and inserted “1518” as the ordinance violated. No section or subsection was alleged. Meziere objected and requested a continuance. The circuit court denied his request.

At the trial, two officers testified for City. Meziere, age 65, also testified. The court found Meziere guilty beyond a reasonable doubt of driving while intoxicated and fined him $100.00. Meziere appealed.

On undisputed facts we find Meziere appealed to the circuit court from the municipal court’s judgment on the charge of driving under the influence, not driving while intoxicated. When the case for trial was called in the circuit court, the judge announced “[t]he charge before the Court ... [is] driving under the influence of alcohol.” In opening statement, the prosecutor said Meziere “was given a ticket for driving under the influence of alcohol....” The police officer who signed the ticket testified “[t]he charge is driving under the influence of alcohol.” In closing argument, the prosecutor on three occasions argued City proved Meziere operated “a vehicle under the influence of alcohol.” In rebuttal closing argument, the prosecutor repeated, “[a]nd I think that we’ve proven that [Meziere] has operated a vehicle under the influence of alcohol beyond a reasonable doubt.” The circuit court found him guilty beyond a reasonable doubt of “driving while intoxicated.”

Paragraphs 2 and 3, of Ordinance No. 1518 of the City of Bellefontaine Neighbors Code state:

2) Driving While Intoxicated.

A person commits the offense of driving while intoxicated if he operates a motor vehicle while in an intoxicated or drugged condition.

8) Driving With Excessive Blood Alcohol Content.

a) A person commits the offense of driving with excessive blood alcohol content if he operates a motor vehicle with ten-hundredths of one percent or more by weight of alcohol in his blood.

b) As used in this Section, percent by weight of alcohol in the blood shall be based upon grams of alcohol per one hundred milliliters of blood and may be shown by chemical analysis of the person’s blood, breath, saliva or urine.

The ordinance defines two separate violations: driving while intoxicated, Ordinance No. 1518(2); and, driving with excessive blood alcohol content, Ordinance No. 1518(3). It does not define driving under the influence as a violation. City did not cite or offer evidence of a driving under the influence ordinance. It cannot be discerned, with certainty, under which section of Ordinance 1518 City intended to charge, 1518(2), 1518(3), or some other ordinance.

Section 577.037.5 RSMo Cum.Supp.1993, effective one year before the present charge, provides for dismissal of “any charge alleging a violation ... of any county or municipal ordinance prohibiting driving while intoxicated or driving under the influence of alcohol ... if a chemical analysis ... demonstrate[s] that there was less then ten-hundredths of one percent of alcohol in defendants blood_” (Our emphasis). From this we learn the legislature has recognized a difference between the offense charged in the information, brought and tried by the prosecutor, and the offense judged by the court. We also learn the municipalities test result, .025, may justify dismissal of a DWI or DUI charge or violation in the appropriate case.

City had a duty to bring the charge in a manner that would remove the ambiguity before trial. Nothing done by the court or defense counsel can diminish that duty. The ambiguity exists because the concept of “driving under the influence” is not defined in the ordinance as a violation and is equally encompassed in both DWI and Blood Alcohol Content charges.

The circuit court conviction for Driving While Intoxicated in a de novo trial must be reversed because (a) all of the records of the previous municipal court charge and conviction confirm driving while intoxicated was not charged and not found; and (b) the “amended charge” in the circuit court, as filed by the prosecutor, is ambiguous because it cannot be determined what violation of what section of a city ordinance was intended and the Driving Under the Influence charge was not shown to be a violation of City ordinance.

The judgment and sentence are reversed.

REINHARD, P.J., concurs. GRIMM, J., dissents in separate opinion.

1 . The officer also issued another "Uniform Complaint and Summons” for failure to show proof of valid insurance. This appeal does not involve this charge.