Gholson v. Director of Revenue

HAROLD L. LOWENSTEIN, Judge,

dissenting.

I respectfully dissent. The “explanations” uttered by a judge after rendering a judgment in a court tried case, where no findings or conclusions had been requested, should not be the foundation for now reversing and setting aside that judgment. Rule 73.01(c) provides that where no such timely request has been made (as in the case at bar), controverted fact issues (did Gholson put gum in his mouth within the observation period prior to the test) “shall be considered as having been found in accordance with the result reached.” See Misemer v. Dir. of Revenue, 134 S.W.3d 761, 763 (Mo.App.2004). The post trial attempt to get the judge to make comments on the record that later would form the foundation for a reversal flies in the face of Rule 73.01.

The Director’s sole point on this appeal is that Gholson failed to rebut the presumption of validity of the test result as established by her having made a prima facie case. No matter what the trial judge said after rendering judgment can detract from the fact that the result reached not only comported with the applicable common law at the time of the judgment and after trial motion, but with the later case of Coyle v. Director of Revenue, 181 S.W.3d 62 (Mo. banc 2005).

The controverted evidence in the case at bar consisted of Gholson’s testimony that between five and ten minutes prior to the test he put gum in his mouth and told this to the trooper. A detention center employee testified he heard Gholson tell the trooper that Gholson was chewing gum. The trooper denied that Gholson put gum in his mouth, nor did he hear Gholson make such a statement. It was uncontro-verted that the trooper did not observe the subject for the requisite fifteen minutes prior to the administration of the test.

Verdoorn v. Director of Revenue, 119 S.W.3d 543 (Mo. banc 2003), was decided well before this case. The Court stated that there was no dispute that the Director had made a prima facie case. Id. 545. The driver had been arrested upon probable cause for having committed an alcohol-related offense and he had a blood alcohol level above the legal limit. § 302.505.1, RSMo 2000. In a trial de novo, under Section 302.535.1 this created a presumption the driver was intoxicated. Verdoorn, 119 S.W.3d at 545. Establishment of a prima facie case by the Director entitled the driver “to present rebuttal evidence that raises a genuine issue of fact regarding the validity of the blood alcohol test results.” Id. 546. The Court continued saying “the driver’s burden is one of production — not persuasion. The Director retains the burden of proof throughout the proceeding.” Id. Yerdoorn’s only rebuttal evidence was the testimony of an expert that, based on Verdoorn’s drinking pattern, he could have been intoxicated or he “might not ” have reached the legal limit. Id. 547. “This inconclusive testimony was insufficient to rebut the presumption of intoxication established by the director’s prima facie case.”

No matter what the trial court said, Gholson’s production of rebuttal evidence of chewing gum before the test was administered was sufficient to rebut the presumption of validity of the test result, and, under Verdoorn, the Director still bore the “burden of proof throughout the proceeding.” 119 S.W.3d at 546. The trial court here was not bound to make findings of fact, and under Rule 73.01 the facts must be read in light of the result. So, reviewed here on a question of law, under Verdoorn, the trial reached the correct result, even if for the incorrect reason.

This court in Carr v. Director of Revenue, 95 S.W.3d 121, 127-28 (Mo.App.2002), held there was evidence before the trial court which it could have concluded the driver ingested candy during the observation period in violation of 19 CSR 25-30.060 and such evidence would have been sufficient to rebut the prima facie case for suspension.

The later case of Coyle v. Director of Revenue, 181 S.W.3d 62 (Mo. banc 2005) (Coyle II), does not bolster the cause for a reversal. Coyle enunciated the proposition that non-observation for the fifteen minute period was not sufficient, alone, to rebut the director’s case. Id. at 66. “Coyle was also required to present evidence that he smoked, vomited, or orally took other materials during that period.... ” Id. The court said that evidence of one of these factors, if believed by the court and under the state regulations, creates a presumption the test results may be invalid. Id. at 65. The defendant here presented such evidence. Consistent with the judgment for the driver, the evidence must be taken as believed; this court should affirm where the court reached the correct result, even if for a different reason. Kubley v. Brooks, 141 S.W.3d 21, 27 n. 5 (Mo. banc 2004).