Bryan Goforth v. Director of Revenue

In the
Missouri Court of Appeals
Western District
BRYAN GOFORTH, )
)
Appellant, ) WD82604
)
v. ) OPINION FILED:
) February 11, 2020
DIRECTOR OF REVENUE, )
)
Respondent. )
Appeal from the Circuit Court of Cass County, Missouri
The Honorable Jeffrey L. Cox, Judge
Before Special Division: Zel M. Fischer, Special Judge, Presiding, Cynthia L. Martin,
Judge and Gary D. Witt, Judge
Bryan Goforth ("Goforth") appeals from a judgment sustaining the Director of
Revenue's revocation of Goforth's driving privileges after he refused to submit to a
chemical breath test. Goforth argues that the Director of Revenue failed to adduce evidence
that he operated a motor vehicle on a public highway, and thus failed to prove he impliedly
consented to submit to chemical testing. Finding no error, we affirm.
Factual and Procedural Background1
Shortly after 1:00 a.m. on February 24, 2018, the Belton Police Department received
a call from a Taco Bell employee about a man in a black GMC Yukon parked in the
restaurant's parking lot. The employee reported the man had previously fallen asleep in his
vehicle while in the restaurant's drive-through lane. When a law enforcement officer
arrived, the GMC Yukon was parked at the north end of the restaurant's parking lot, with
its headlights and taillights on, and the driver's window rolled down, even though it was
cold and raining. The officer observed a man, later identified as Goforth, asleep in the
driver's seat. The officer smelled a strong odor of intoxicants coming from within the
vehicle. Goforth was the vehicle's only occupant. The vehicle was registered to Goforth.
The officer woke Goforth, at which point Goforth explained that he was waiting for
his food order from Taco Bell. Goforth denied falling asleep in the restaurant's drive-
through lane. The officer asked Goforth where he was coming from three times. Goforth
ultimately answered "home." The officer asked Goforth whether he had been drinking.
Goforth gave a rambling answer about having a series of drinks, including two glasses of
wine and 3-4 beers at Buffalo Wild Wings. The officer observed several indicators of
intoxication and arrested Goforth for driving while intoxicated.
Goforth was transported to the Belton jail, where the officer read Goforth the
implied consent warning required by section 577.041.2.2 Goforth refused to submit to a
1
We view the evidence and reasonable inferences drawn therefrom in the light most favorable to the trial
court's judgment. Ayler v. Dir. of Revenue, 439 S.W.3d 250, 252 n.2 (Mo. App. W.D. 2014) (citing White v. Dir. of
Revenue, 321 S.W.3d 298, 302 (Mo. banc 2010)).
2
All statutory references are to RSMo 2016 as supplemented through February 24, 2018, unless otherwise
indicated.
2
chemical breath test. Goforth was given written notice of the revocation of his license and
privilege to drive pursuant to section 302.574.1. At the time of the revocation, Goforth had
a valid commercial class A license issued by the state of Missouri.
Pursuant to section 302.574.4, Goforth filed a petition to review the revocation of
his license and privilege to drive. During the hearing on Goforth's petition, the Director of
Revenue submitted its certified records pertaining to the case, which included the section
302.574.1 revocation notice, the alcohol influence report, a copy of Goforth's Missouri
driver's license and the citation he received, the Belton Police Department's incident
reports, and Goforth's Missouri driver record. Goforth argued that the trial court should
set aside the Director of Revenue's revocation of his license because there was no evidence
that he had ever operated a motor vehicle on a public highway. The trial court issued its
findings of fact, conclusions of law, and judgment ("Judgment") on February 6, 2019,
sustaining the Director of Revenue's revocation of Goforth's license and privilege to drive.
Goforth appeals.
Standard of Review
We review the trial court's judgment in a license revocation case as we do any other
court-tried civil case. Nix v. Dir. of Revenue, 573 S.W.3d 156, 159 (Mo. App. W.D. 2019).
"'[T]he 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.'" Id. (quoting White v. Dir. of Revenue, 321 S.W.3d 298, 307-08 (Mo. banc 2010)).
However, "'[w]hen facts are not contested and the issue is one of law, our review is de
novo, and no deference is given to the trial court's determination.'" Stiers v. Dir. of
3
Revenue, 477 S.W.3d 611, 614 (Mo. banc 2016) (quoting Johnson v. Dir. of Revenue, 411
S.W.3d 878, 881 (Mo. App. S.D. 2013)).
Analysis
Goforth argues that the trial court erred in affirming the Director of Revenue's
revocation of his license and privilege to drive because the Director of Revenue did not
present evidence that he had ever operated a motor vehicle on a public highway. Goforth
argues that this evidence is required before his consent to submit to chemical testing can
be implied, and that in the absence of implied consent, his refusal to submit to chemical
testing could not support revocation of his license.
Section 577.020 addresses when consent is implied for chemical tests to determine
the alcohol or drug content of a person's blood. Relevant to this case,3 section 577.020.1(1)
provides:
1. Any person who operates a vehicle upon the public highways of this
state . . . shall be deemed to have given consent, subject to the provisions of
sections 577.019 to 577.041, to a chemical test or tests of the person's breath,
blood, saliva, or urine for the purpose of determining the alcohol or drug
content of the person's blood pursuant to the following circumstances:
(1) If the person is arrested for any offense arising out of acts which the
arresting officer had reasonable grounds to believe were committed while the
person was operating a vehicle . . . while in an intoxicated condition . . . .
(Emphasis added.) Section 577.041.2 provides:
The request of the officer to submit to any chemical test 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. If such person was operating a vehicle prior to such
3
Section 577.020.1 also addresses the operation of a vessel or an aircraft, and describes circumstances for
detention or stop if operating an aircraft, if under the age of twenty-one, or if involved in a collision or accident
resulting in a fatality or serious physical injury.
4
detention, stop, or arrest, he or she shall further be informed that his or her
license shall be immediately revoked upon refusal to take the test.
If revocation of a license following the refusal to submit to chemical testing is challenged,
section 302.574.4 describes what must be determined at a subsequent hearing. In a case
like Goforth's, where there has been an arrest based on the circumstances described in
section 577.020.1(1), section 302.574.4 provides:
At the hearing, the court shall determine only:
(1) Whether the person was arrested or stopped;
(2) Whether the 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 the person refused to submit to the test.
(Emphasis added.) See Howe v. Dir. of Revenue, 575 S.W.3d 246, 250 (Mo. App. E.D.
2019) (citing section 302.574.4) ("[F]or a circuit court to uphold a driver’s license
revocation for failure to submit to chemical testing, the Director must show that: (1) the
driver was arrested; (2) the officer had probable cause to believe the driver was driving
while intoxicated; and (3) the driver refused to submit to the test.").
Goforth admits that the Director of Revenue proved each of these essential elements
by a preponderance of the evidence. [Appellant's Brief, pp. 9-10] Goforth contends,
however, that the Director of Revenue failed to prove an additional essential element--that
he had ever operated a vehicle on a public highway. Goforth's argument is directly
contradicted, however, by the plain language of section 302.574.4 which provides that in a
hearing challenging revocation of a license for refusal to submit to chemical testing, a trial
court "shall determine only" the three essential elements identified in that section.
5
We recognize that our courts have consistently construed the third essential element
described in section 302.574.4--that a driver refused to submit to chemical testing--to
require proof that the refusal was valid. See, e.g., Howe, 575 S.W.3d at 251 (holding that
"an absolute prerequisite to any finding under Section 302.574.4 that [a driver] refused to
submit to [chemical testing] is a corresponding finding . . . that [the driver's] refusal [was]
valid"). Validity of refusal requires compliance with the statutory requirements attendant
to chemical testing. So, for example, our courts have held that a refusal is not valid where
an officer failed to give the implied consent warning required by section 577.041.2. Id. at
251-52. And our courts have held that when "a driver conditions a refusal on consulting
with an attorney, but is not given a reasonable opportunity to do so, the driver is not deemed
to have refused to submit to a chemical test for purposes of license revocation." Roesing
v. Dir. of Revenue, 573 S.W.3d 634, 637 (Mo. banc 2019) (emphasis omitted) (referring to
section 577.041.1's right to attempt to contact an attorney).
Though not precisely articulated as such, Goforth's argument can be fairly read to
contend that refusal to submit is not valid unless it is established that a driver impliedly
consented to submit to chemical testing by "operat[ing] a vehicle upon the public highways
of this state" as provided in section 577.020.1(1). No Missouri case has directly addressed
whether a valid refusal to submit requires proof that the driver has ever operated a vehicle
upon the state’s public highways. Two Missouri cases have indirectly addressed the
subject, however.
In Bertram v. Director of Revenue, 930 S.W.2d 7, 8 (Mo. App. W.D. 1996), a driver
was arrested after a police officer witnessed her driving her vehicle over a curb from a
6
Wendy's restaurant, through a grass median, and into a Taco Bell lot. Because the driver
was not operating her vehicle upon a public highway at the time of her arrest, she argued
that her refusal to submit to chemical testing could not support suspension of her license.
Id. We concluded that proof a driver was operating a vehicle on a public highway at the
time of their arrest was not required. Id. at 9 ("[i]t is not necessary to allege or prove that
the vehicle was operated on a public road or highway" at the time of an arrest for driving
while intoxicated). We noted, however, that implied consent to submit to chemical testing
is generally predicated upon a person's operation of a vehicle on the public highways at
some point in time. Id. In that context, we noted that Bertram's prior driving record, which
established a speeding conviction, was sufficient to show that Bertram had "operated a
vehicle on public roadways," and could be treated "as a person who had impliedly
consented to submit to a chemical test." Id. Bertram did not address, however, whether
proof of implied consent was required to establish a valid refusal pursuant to section
302.574.4, as that argument was not made by Bertram.
In Peeler v. Director of Revenue, 934 S.W.2d 329, 329 (Mo. App. E.D. 1996), a
driver was arrested in a parked car in the parking lot of an inn on suspicion of driving while
intoxicated. The driver consented to chemical testing after being informed that his license
would be suspended if he refused to submit. Id. The driver's license was suspended after
chemical testing established he was intoxicated. Id. The driver appealed and argued his
consent to submit to chemical testing was not valid because there was no evidence that he
had been "driving 'upon the public highways' at the time [he was] required to submit to
testing." Id. at 330. As was the case in Bertram, the Eastern District concluded in Peeler
7
that "[w]hether [a] driver operated his vehicle on the public highways [at the time he was
arrested] and whether Director proved as much at trial was immaterial." Id. In other words,
it is not necessary to prove that a driver was "operat[ing] his vehicle on a public highway"
at the time the driver was arrested and "advised of the consequences of refusing to submit
to a chemical test." Id. at 331. Peeler did observe, however, that application for and
acceptance of a Missouri driver's license is sufficient to support the general finding that a
driver has impliedly consented to submit to chemical testing. Id. at 330-31. But, as in
Bertram, because the issue was not raised, Peeler did not address whether a valid refusal
to submit requires proof that a driver has impliedly consented to submit to chemical testing
by operating a vehicle on the public highways at some point in time.
Here, Goforth makes the argument that was not made in either Bertram or Peeler.
Goforth acknowledges that section 577.020.1 "as written does not require proof that he was
driving on a public highway at the time of his arrest for driving while intoxicated."
[Appellant's Brief, p. 11] Goforth argues, however, that absent some evidence that he ever
operated a vehicle on the public highways, "consent is not implied and no sanction can be
imposed for refusing to submit." [Appellant's Brief, p. 11]
We agree that as a general proposition, refusal to submit is not valid (the third
essential element of section 302.574.4) unless the driver has impliedly consented to
chemical testing. Pursuant to the plain language of section 577.020.1, consent to submit
to chemical testing cannot be implied unless the evidence supports an inference that a
driver has ever operated a vehicle on the public highways in Missouri.
8
We disagree, however, with Goforth's contention that the Director of Revenue's
evidence failed to support the inference that Goforth's refusal to submit was valid.
Substantial evidence permitted the trial court to conclude that Goforth impliedly consented
to chemical testing by operating a vehicle on the public highways in this state. First,
Goforth had a valid Missouri driver's license at the time of his arrest. The acceptance of a
Missouri driving privilege by applying for and receiving a driver's license permits the
inference that a driver is assuming all obligations associated with operating a vehicle on
the public highways, including impliedly consenting to chemical testing. See Peeler, 934
S.W.2d at 330-31. "The theory behind the Implied Consent Law is that the use of the
public highways is a privilege, not a right, and 'a motorist by applying for and accepting an
operator's license "impliedly consents" to submission to a chemical analysis of his blood
alcohol level when charged with driving while intoxicated.'" Id. at 331 (emphasis omitted)
(quoting State v. Trumble, 844 S.W.2d 22, 23 (Mo. App. W.D. 1992)). Stated another way,
it is reasonable to infer from a driver's application for and acceptance of a Missouri driver's
license that the driver will operate a vehicle on the public highways of Missouri after
receipt of that license.
Goforth disagrees with this conclusion. However, even if we disregard that Goforth
possessed a valid Missouri driver's license, other substantial evidence permitted the
inference that Goforth's refusal was valid because he impliedly consented to submit by
operating a vehicle on the public highways in this state. Goforth was found in the driver's
seat of a running vehicle which was parked in the parking lot of a fast-food restaurant. The
vehicle was registered to Goforth, and Goforth was the vehicle's only occupant. Goforth
9
told the responding officer he arrived at the Taco Bell from his home. Goforth's driver's
license showed a residence address in Pevely, Jefferson County, Missouri, more than 250
miles from the point of his arrest in Belton, Jackson County, Missouri.4 Goforth also told
the responding officer that he had been drinking earlier in the evening at a different
restaurant. The trial court could reasonably infer from this evidence that Goforth impliedly
consented to submit to chemical testing because he operated a vehicle on the public
highways in the state of Missouri at some point prior to his arrest.
The trial court did not err in sustaining the Director of Revenue's revocation of
Goforth's driver's license and privilege to drive.
Goforth's point on appeal is denied.
Conclusion
The trial court's Judgment is affirmed.
__________________________________
Cynthia L. Martin, Judge
All concur
4
"We take judicial notice of the geographical location of cities in the State and the approximate distance
between them." See Maxwell v. City of Hayti, 985 S.W.2d 920, 922 (Mo. App. S.D. 1999) (citing Walsh v. Table
Rock Asphalt Constr. Co., 522 S.W.2d 116, 118 n.1 (Mo. App. 1975)).
10