In the 

Missouri Court of Appeals 

Western District

ADAM M. TARWATER,

Appellant-Respondent,

v.

DIRECTOR OF REVENUE,

Respondent-Appellant.

)

)

)

)

)

)

)

)

)

WD84007 Consolidated with 

WD84008

OPINION FILED: October 5, 2021

Appeal from the Circuit Court of Clay County, Missouri

The Honorable Louis Angles, Judge

Before Division Four: Cynthia L. Martin, Chief Judge, Presiding, Karen King Mitchell, 

Judge and Gary D. Witt, Judge

The Director of Revenue ("Director") appeals the trial court's judgment setting aside 

the revocation of Adam M. Tarwater's ("Tarwater") driver's license pursuant to section 

577.041.1 The Director argues that the trial court erred in finding that Tarwater did not 

refuse to take a breath test. Tarwater cross-appeals, arguing that the trial court erred in 

finding that there were reasonable grounds to believe he was driving a motor vehicle while 

 

1All statutory references are to RSMo 2016, as supplemented through the date of Tarwater's arrest, August 

24, 2019, unless otherwise indicated. 
2

in an intoxicated or drugged condition. We reverse the trial court's judgment and remand 

this matter to the trial court with instructions to enter a judgment sustaining the revocation 

of Tarwater's driving privileges. 

Factual and Procedural Background2

On August 24, 2019, Corporal Christian Childs ("Corporal Childs") of the Liberty 

Police Department responded to the scene of a two-car accident at US Highway 69 and B 

Highway in Clay County at 11:41 a.m. after being dispatched approximately five to ten 

minutes earlier. Officer Jeffrey Gartner ("Officer Gartner") was already at the scene when 

Corporal Childs arrived. Officer Gartner's accident report indicated that the time of the 

accident was 11:28 a.m., and that he arrived on the scene at 11:35 a.m. 

When Corporal Childs arrived on the scene, he saw Tarwater, the driver of one of 

the vehicles involved in the accident, hand Officer Gartner a bottle of vodka. Officer 

Gartner told Corporal Childs that Tarwater claimed to have consumed alcohol after the 

accident. 

Corporal Childs spoke with Roy Marrant ("Marrant"), the driver of the other vehicle 

involved in the crash. Marrant identified Tarwater as the driver of the vehicle that caused 

the accident. Marrant said he did not observe Tarwater drinking after the accident. Marrant 

told Corporal Childs that Tarwater tried to persuade Marrant to resolve the accident without 

calling the police. 

 

2We view the evidence and all reasonable inferences drawn therefrom in the light most favorable to the trial 

court's judgment. Goforth v. Dir. of Revenue, 593 S.W.3d 124, 126 n.1 (Mo. App. W.D. 2020). 
3

Corporal Childs then spoke with Tarwater, who was sitting on the ground staring 

off into the distance. Tarwater had a strong odor of intoxicating beverages, and watery and 

bloodshot eyes. Tarwater was cooperative, but his balance was uncertain, his speech was 

slurred, he was mumbling and speaking very quietly, and he was hiccupping. In response 

to Corporal Childs's questions, Tarwater said that he did not have any medical conditions 

and that he was not taking any medications. Tarwater told Corporal Childs that he had a 

couple of beers before the accident. Corporal Childs asked Tarwater about the bottle of

vodka. Tarwater admitted to Corporal Childs that he had drank some vodka, without 

indicating when. Tarwater admitted that he was driving at the time of the accident. 

Corporal Childs asked Tarwater to perform field sobriety tests. Tarwater refused. 

Corporal Childs arrested Tarwater on suspicion of driving while intoxicated. During a later 

inventory of Tarwater's vehicle, two additional bottles of vodka were found, both of which 

were unopened. 

After transporting Tarwater to the Liberty jail, Corporal Childs read the implied 

consent warning to Tarwater at 12:32 p.m. Tarwater asked to speak with a lawyer. 

Corporal Childs gave Tarwater access to a telephone and provided Tarwater with a 

phonebook. Tarwater ultimately called a co-worker. At 12:55 p.m., Corporal Childs asked 

Tarwater whether he agreed to provide a breath sample. Tarwater agreed, but before 

providing a sample, Tarwater asked Corporal Childs whether he would be charged with 

driving while intoxicated if he tested over the legal limit. Corporal Childs informed 

Tarwater that he was already under arrest for driving while intoxicated whether he provided 
4

a breath sample or not. Tarwater then said, "fuck that," and refused to provide a breath 

sample. 

Tarwater's driver's license was revoked pursuant to section 577.041 based on his

refusal to submit to a chemical test. Tarwater sought judicial review of the administrative 

revocation of his driving privilege. At the hearing, Corporal Childs and Tarwater testified, 

and certified records from the Missouri Department of Revenue3 pertaining to the case, a 

DVD containing two videos from Corporal Childs's patrol car on the scene, and a DVD 

containing two videos of Tarwater during the booking process, were entered into evidence. 

Tarwater testified that he drank one or two beers approximately seven to eight hours prior 

to the accident, and that he did not feel intoxicated prior to the accident. Tarwater testified

that, just before the accident, he left a gas station where he had purchased three pints of 

vodka. Tarwater testified that after the accident, he drank more than half of one of the 

three bottles of vodka. Tarwater testified that he began feeling intoxicated as he was 

speaking to Officer Gartner at the scene, and that by the time Corporal Childs arrived, "the 

alcohol was taking effect and it's all fairly hazy." 

The trial court issued its findings of fact, conclusions of law, and judgment 

("Judgment") on July 20, 2020. The Judgment concluded that Tarwater was arrested, and

that "[t]here were reasonable grounds to believe [Tarwater] was driving a motor vehicle 

while in an intoxicated or drugged condition." However, the Judgment also concluded that 

Tarwater "did not volitionally fail to do what was necessary for the [breath] test[] to be 

 

3See section 302.312.1 ("Copies of all papers, documents, and records lawfully deposited or filed in the 

offices of the department of revenue . . . and copies of any records, properly certified by the appropriate custodian or 

the director, shall be admissible as evidence in all courts of this state . . . .). 
5

performed." In support of this conclusion, the trial court found that Tarwater "consumed 

a pint of vodka after [a] minor accident;" that the "[b]ooking video shows [Tarwater] too 

drunk to find [an] attorney in [the] phone book;" that Tarwater was "unable to dial a phone;"

and that Tarwater was becoming "progressively more intoxicated during [the] interview." 

The Judgment concluded that, pursuant to section 577.033, Tarwater was "in a condition 

rendering him incapable of refusing to take [the] breath test." The Judgment set aside the 

revocation of Tarwater's driving privilege. 

Both the Director and Tarwater appeal. 

Standard of Review

We review the trial court's judgment in a license revocation case using the same 

standard employed in other court-tried cases. Ducote v. Dir. of Revenue, 577 S.W.3d 170, 

173 (Mo. App. E.D. 2019). We will affirm the trial court's judgment "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)). We view the evidence and all reasonable inferences drawn therefrom 

in the light most favorable to the judgment. Goforth v. Dir. of Revenue, 593 S.W.3d 124, 

126 n.1 (Mo. App. W.D. 2020). 

Analysis

The Director challenges the Judgment's conclusion setting aside the revocation of 

Tarwater's driving privileges, and argues that the trial court erred when it relied on section 

577.033 to find that Tarwater did not volitionally refuse to perform a breath test. Tarwater

challenges the Judgment's conclusion that there were reasonable grounds to believe that he 
6

was driving a motor vehicle while in an intoxicated or drugged condition, and argues that 

there was no evidence to support this conclusion.

4

 We address the issues separately. 

Section 577.033 is not applicable when determining whether a driver has refused to 

submit to a test pursuant to section 577.041. Instead, refusal to submit to a test pursuant 

to section 577.041 means declining to submit to a test of one's own volition, determined 

objectively, and without regard to whether the declination is knowing or remembered. 

The Director argues that the trial court's finding that Tarwater did not volitionally 

refuse to perform a breath test was not based on substantial evidence. The Director argues 

that section 577.033, which was expressly referred to by the trial court, is not applicable to 

determining whether a driver refused to submit to a test pursuant to section 577.041; that 

refusal to submit to a test need not be knowing and is not dependent on a driver's subjective 

mental state; and that video evidence established that Tarwater objectively refused to 

submit to a breath test of his own volition. We agree. 

Any person who operates a vehicle in Missouri is deemed by statute to have 

impliedly consented to a chemical test to determine his or her blood alcohol content if the 

person "is arrested for an 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." Section 577.020.1(1). If a person under arrest 

 

4Technically, Tarwater is not aggrieved by the Judgment, which reinstated his driving privileges. Being 

aggrieved by a judgment is a prerequisite to the statutory right of appeal. Section 512.020 (conferring the right to 

appeal upon "[a]ny party to a suit aggrieved by any judgment of any trial court"). Tarwater's cross-appeal is 

tantamount to an argument that the Judgment can be affirmed on an alternative basis should this Court conclude that 

the Director met its burden to establish that Tarwater refused to submit to the breath test, and will be treated as such. 

See Stevenson v. Maxwell, 605 S.W.3d 1, 5 (Mo. App. W.D. 2020) ("We will affirm the judgment if it is correct 

under any reasonable theory supported by the evidence."). However, because the alternative ground for affirming 

the Judgment urged by Tarwater requires him to establish that an express factual finding is not supported by 

substantial evidence, we do not fault Tarwater for filing a cross-appeal to ensure that the issue is preserved for 

appellate review. 
7

pursuant to section 577.020 refuses upon the request of an officer to submit to a chemical 

test allowed pursuant to section 577.020, "then evidence of the refusal shall be admissible 

in any proceeding related to the acts resulting in such . . . arrest." Section 577.041.1. "The 

request of the officer to submit to any chemical test shall . . . inform the person that 

evidence of refusal to take the test may be used against such person." Section 577.041.2. 

In addition, the officer must also inform the person that "his or her license [will] be 

immediately revoked upon refusal to take the test." Id. The administrative ramifications 

of refusing to submit to a chemical test after a driver's arrest are thus distinct from the 

criminal ramifications of the arrest. Cf. Pagano v. Dir. of Revenue, State of Mo., 927 

S.W.2d 948, 950-51 (Mo. App. E.D. 1996) ("Section 302.505.3 makes clear that the 

criminal charges and the administrative determination are separate and distinct.") 

(quotation omitted). 

Section 302.574.1 describes the administrative steps to be taken by an officer when 

"a person who was operating a vehicle refuses upon the request of the officer to submit to 

any chemical test under section 577.041." The officer is obligated to serve a notice of 

revocation to the person, and to take possession of his or her license on behalf of the 

director of revenue. Section 302.574.1. The officer is then obligated to make a "certified 

report" detailing the information described in section 302.574.2, and to forward the same 

along with the person's license to the director of revenue, who is then directed to revoke 

the license of the person for a period of one year. Section 302.574.2 & .3. Such person 

may then petition for a hearing before a court in the county where the arrest occurred. 
8

Section 302.574.4. At that hearing, and relevant to this case, the only issues before the 

court are: 

(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.

Id. The Director must establish a prima facie case for license revocation by a 

preponderance of the evidence. Stanton v. Dir. of Revenue, 616 S.W.3d 398, 403 (Mo. 

App. W.D. 2020). 

The trial court found that the Director sustained its burden to establish the first and 

second elements set forth in section 302.574.4. However, the trial court found that the 

Director did not sustain its burden to prove the third element. The trial court referred to

section 577.033 in reaching this conclusion. Section 577.033 provides: 

Any person who is dead, unconscious or who is otherwise in a condition 

rendering him incapable of refusing to take a test as provided in sections 

577.020 to 577.041 shall be deemed not to have withdrawn the consent 

provided by section 577.020 and the test or tests may be administered. 

(Emphasis added.) In concluding that Tarwater was "incapable of refusing to take [a] 

breath test" pursuant to section 577.033, the trial court found that Tarwater did not 

"volitionally fail to do what was necessary" to submit to a breath test because, in effect, he 

was too intoxicated to knowingly do so. The trial court's conclusion that Tarwater was too 
9

intoxicated to volitionally refuse to submit to a breath test was legally erroneous in this 

case.

Section 302.574.4(3) does not explain how refusal to submit to a chemical test as 

required by section 577.041 is to be determined. However, that issue has been resolved by 

decisional law.

In Spradling v. Deimeke, 528 S.W.2d 759 (Mo. 1975), our Supreme Court addressed 

the issue of "refusal" to submit to a test, and adopted the following rule:

"A driver who is advised of his rights under the implied consent law but 

declines to take a breathalyzer test is deemed to have 'refused' the test so as 

to require revocation of his license unless he objectively and unequivocally 

manifested that he did not understand his rights and the warning concerning 

the consequences of refusal and was denied clarification. A lack of 

understanding not made apparent to the officer is of no consequence."

Id. at 766 (quoting Wash. Dep't of Motor Vehicles v. Riba, 520 P.2d 942, 945 (Wash. App. 

1974)). In addressing what is meant by the word "refusal," the Supreme Court held:

In the context of the implied consent law, it simply means that an arrestee, 

after having been requested to take the breathalyzer test, declines to do so of 

his own volition. Whether the declination is accomplished by verbally 

saying, 'I refuse,' or by remaining silent and just not breathing or blowing 

into the machine, or by vocalizing some sort of qualified or conditional 

consent or refusal, does not make any difference. The volitional failure to 

do what is necessary in order that the test can be performed is a refusal. 

Id. (emphasis added). Spradling was decided in 1975, several years before section 577.033 

was enacted in 1982. 

In Cartwright v. Director of Revenue, 824 S.W.2d 38 (Mo. App. W.D. 1991), we

addressed a driver's contention that he was "incapable of refusing to take a test" pursuant 

to section 577.033, and thus could not be deemed to have refused to submit to a test 
10

pursuant to section 577.041. There, after the implied consent law was read, the driver 

indicated he understood the rights that were read to him, but expressly refused to submit to 

the investigator's request for a blood draw. Id. at 39. At a hearing to challenge revocation 

of his license, the driver did not dispute that he verbally refused to submit to a test, but 

contended that he was "incapable of refusing to take a test" pursuant to section 577.033 

because he did not remember any of the events in the hospital due to a blow to the head. 

Id. at 39-40. The trial court concluded that the driver "did not refuse to submit to the 

chemical test" because he "was not aware of what was going on." Id. 

On appeal, we framed the question presented as "whether or not [the driver's] refusal 

to take a test must be knowing." Id. at 40. We rejected the driver's argument that he was 

incapable of refusing to take a test pursuant to section 577.033, and held that "[t]he statutes 

in this state do not require that a refusal be knowing." Id. at 41. "The only question is 

whether or not [the driver] refused the test." Id. Cartwright thus applied Spradling's

definition of "refusal" and underscored that declining to submit to a test of one's own 

volition by word or inaction is volitional even if not remembered or knowing due to 

intoxication or injury. 

Our Supreme Court adopted Cartwright's reasoning in Berry v. Director of Revenue, 

885 S.W.2d 326 (Mo. banc 1994), overruled on other grounds by White, 321 S.W.3d at 

305-07. In Berry, a driver was involved in a serious one-car accident, had alcohol on his 

breath and watery eyes, and refused to cooperate with the officer and with medical 

personnel on the scene. Id. at 326. At the hospital, the officer arrested the driver for driving 

while intoxicated and asked the driver to provide a blood sample several times. Id. The 
11

driver verbally expressed his refusal to submit to a test each time. Id. at 326-27. At a

hearing to challenge revocation of his license, the driver testified that he had no memory 

of the officer speaking to him at the scene or at the hospital, and blamed his memory lapses 

on his injuries. Id. The driver also claimed that his injuries rendered him physically 

incapable of refusing a chemical test pursuant to section 577.033. Id. The Supreme Court 

rejected the argument, concluding that the case was indistinguishable from Cartwright. Id. 

The Supreme Court concluded that the only issue is whether a driver has objectively 

refused to submit to a test, and that the driver's subjective mental capacity to knowingly 

make such a decision is immaterial. Id. at 327-28.

Here, as Tarwater acknowledges in his Brief, his entire interview is on videotape. 

[Respondent's Brief, p. 27] At 1:14 p.m., Corporal Childs attempted to administer the 

breath test to Tarwater. Tarwater then asked, "Is this going to give me a DWI?" Corporal 

Childs answered, "You already have a DWI," to which Tarwater responded, "Fuck that," 

and sat back down. Based on Spradling's definition of "refusal," Tarwater objectively 

refused to submit to a test by vocalizing his refusal to do so. 528 S.W.2d at 766 (holding 

that "refusal" for implied consent purposes means declining of one's own volition to take a 

breathalyzer test, which includes "verbally saying, 'I refuse'"). 

Tarwater argues that despite what he said on the videotape, section 577.033 requires 

us to re-evaluate the meaning of "volitional refusal," and that he was so intoxicated that he 

"objectively could not have been aware enough of anything to refuse, consent, or attach 

any meaning to what the officers were trying explain to him." [Respondent's Brief, p. 27] 

Tarwater relies on our holding in Nace v. Director of Revenue, 123 S.W.3d 252 (Mo. App. 
12

W.D. 2003), to argue that "volitional refusal" means "knowing refusal." [Respondent's 

Brief, pp. 22-23] Tarwater misapprehends the holding in Nace. 

The issue in Nace was whether a driver objectively refused to submit to a test. 123 

S.W.3d at 255. In Nace, a driver was involved in a serious one-car accident. Id. at 254. 

One trooper testified that approximately an hour after the accident, he asked the driver to 

provide a blood sample, but the driver expressly refused. Id. However, a different trooper 

testified that the trooper who interacted with the driver at the hospital told him the driver 

was unable to respond to questions due to her injuries. Id. This contested evidence required 

the trial court to determine whether the driver objectively refused to submit to a test. In 

resolving this contested factual issue, the trial court considered other evidence relevant to 

what a reasonable person would conclude, including that the driver's brother testified that 

approximately ninety minutes after the accident, the driver did not recognize him, was 

semi-conscious, and did not respond to him when he talked to her; and that the driver's 

mother testified that two and a half hours after the accident, the driver did not respond to 

her and appeared to be incoherent. Id. After considering all of the evidence, the trial court 

found that the driver did not objectively refuse to submit to a chemical test. Id. at 254. 

On appeal, we noted that "Nace's evidence provides a reasonable theory for the trial 

court to have determined that she did not have the ability to refuse." Id. at 258 (emphasis 

added). We noted that Nace's evidence "shows more than that she did not knowingly 

refuse, which is what concerned the court in Cartwright." Id. And we noted, consistent 

with Spradling, that "[r]efusal means declining to take the chemical test when requested to 

do so of one's own volition." Id. Nace reaffirmed that "volitional refusal" is not 
13

synonymous with "knowing refusal," though it may be the subject of contested evidence 

that must be resolved using an objective test. Id. at 259 ("The trial court . . . decided [the 

trooper's] testimony was not credible because of all the evidence showing Ms. Nace could 

not have responded to his request."). Nace specifically observed that "[w]e are not 

suggesting drivers will be able to avoid the effect of [s]ection 577.041 when they are 

intoxicated or suffering from minimal injuries and refuse to provide a blood sample." Id.

"But when a person is able to provide additional evidence showing that she was injured to 

the point that she was not capable of refusing to submit to a test, then a trial court may 

reasonably conclude the person did not withdraw her consent to submit to a test . . . ." Id. 

Importantly, Nace also explained that section 577.033 is not applicable to the 

question of whether a driver has refused to submit to a test pursuant to section 577.041. Id. 

at 257. As Nace observed, section 577.033 is only relevant to determine whether an 

involuntary blood test has been lawfully administered: 

Had [the troopers] simply taken a blood sample from [the driver] without 

asking for her consent because of her injuries, section 577.033 would apply 

and the results of a blood test would be admissible. But that did not happen 

in this instance and, therefore, section 577.033 is inapplicable. 

Id. (emphasis added).5 Thus, when determining as required by section 302.574.4(3)

whether an arrested driver has refused to submit to a test, "[t]he only question is whether 

[the driver] refused to [submit to a test] and, thus, under section 577.041, the Director could 

 

5Cartwright effectively held the same, as it noted that the purpose of section 577.033 is to legislate when 

implied consent pursuant to section 577.020 is not deemed withdrawn, such that a blood sample can be involuntarily 

administered. 824 S.W.2d at 41 ("The legislature has further provided [in section 577.033] that even those who are 

unconscious or otherwise incapable of refusing have not withdrawn their consent to be tested for blood alcohol or 

drug content and the test may be administered."). 
14

revoke her license." Id. at 257. That question is resolved by determining whether a driver 

objectively declined to submit to a test of his or her own volition, the definition of "refusal" 

announced in Spradling years before section 577.033 was enacted. 

The trial court's conclusion that Tarwater "did not volitionally fail to do what was 

necessary for the test(s) to be performed" is legally erroneous as it relied on section 

577.033, and as it viewed volitional refusal as requiring knowing refusal. Although the 

trial court found that Tarwater was highly intoxicated while in custody, that factual finding 

is of no import as a matter of law where the video evidence unequivocally establishes that 

Tarwater was physically able to expressly (and colorfully) vocalize his refusal to submit to 

a test.6 It is legally irrelevant whether Tarwater's vocalized refusal to submit was knowing 

or remembered. 

The Director's point on appeal is granted. 

There is no alternative basis for affirming the Judgment because there were reasonable 

grounds to believe Tarwater was driving in an intoxicated condition. 

Tarwater argues that even if we conclude that the Director sustained its burden to 

establish that Tarwater refused to submit to a test, we should nonetheless affirm the 

Judgment because there were no reasonable grounds to believe that Tarwater was driving 

a motor vehicle while in an intoxicated condition, the second element the Director was 

required to establish pursuant to section 302.574.4(2)(a). We disagree. 

 

6Tarwater argues in his brief that Nace "left open . . . whether a driver could be so impaired by intoxication 

that the driver is rendered incapable of . . . refusal." [Respondent's brief, p. 23] We need not address that issue, as 

Tarwater was not rendered incapable of refusing by his intoxication, but instead expressly vocalized his refusal to 

submit to a test, establishing as a matter of law that he had the physical ability to refuse to submit, and exercised that

physical ability of his own volition.
15

The trial court found that "[t]here were reasonable grounds to believe [Tarwater] 

was driving a motor vehicle while in an intoxicated or drugged condition." We review a

trial court's "probable cause determinations de novo under an abuse of discretion standard 

and give deference to the inferences the trial court made from the historical facts, including 

the trial court's credibility determinations." White, 321 S.W.3d at 310. The trial court 

made no factual findings regarding the historical facts that led to its conclusion that there 

were reasonable grounds to believe that Tarwater was driving while intoxicated. As such, 

we consider the facts "having been found in accordance with the result reached." Stanton, 

616 S.W.3d at 407. (quoting Rule 73.01(c)). 

Section 302.574.4(2)(a) requires a finding that "the officer who requested the 

[breath] test had reasonable grounds to believe that the [person] was driving while 

intoxicated," not that the person was actually driving while intoxicated. Auck v. Dir. of 

Revenue, 483 S.W.3d 440, 445 (Mo. App. E.D. 2016). "Reasonable grounds in a refusal 

case is virtually synonymous with probable cause." Stanton, 616 S.W.3d at 407 (quoting 

Ayler v. Dir. of Revenue, 439 S.W.3d 250, 254 (Mo. App. W.D. 2014)).

The determination of whether probable cause to arrest exists does not involve the 

application of a precise test. Auck, 483 S.W.3d at 444. Instead, "[p]robable cause to arrest 

exists when the arresting officer's knowledge of the particular facts and circumstances is 

sufficient to warrant a prudent person's belief that a suspect has committed an offense." 

Stanton, 616 S.W.3d at 407 (quoting Hinnah v. Dir. of Revenue, 77 S.W.3d 616, 621 (Mo. 

banc 2002)). The arresting officer need not have witnessed the person actually driving and 

need not know the person's condition at the time the person was driving to have probable 
16

cause to believe that the person was driving while intoxicated. Id. Instead, the officer 

"may rely on circumstantial evidence to logically infer that a person was driving while 

intoxicated." Id. "An officer may also rely on information provided by witnesses to 

establish probable cause to believe a person was driving in an intoxicated condition." Id.

(quoting Gallagher v. Dir. of Revenue, 604 S.W.3d 372, 377 (Mo. App. E.D. 2020)). "[I]t 

is well established that statements relayed to the arresting offer by eyewitnesses, law 

enforcement officers, and radio dispatch, which would be considered hearsay if offered for 

the truth of the matter asserted, are admissible to establish a basis for a belief that 

reasonable grounds to arrest for driving while intoxicated existed . . . ." Auck, 483 S.W.3d 

at 444.

The evidence at trial established that an accident occurred when both Tarwater and 

Marrant were traveling southbound on US Highway 69. Marrant's vehicle was in the left 

lane of the highway, directly next to Tarwater's vehicle in the right lane. Tarwater changed 

lanes and struck the right side of Marrant's vehicle. Officer Gartner's report noted the time 

of the accident as 11:28 a.m. Officer Gartner arrived on the scene at 11:35 a.m., and 

Corporal Childs arrived on the scene at 11:41 a.m.

Corporal Childs testified that he immediately spoke with Marrant who said that he 

observed Tarwater driving; that he did not observe Tarwater drinking any substance after 

the accident; and that Tarwater asked him to resolve the crash without involving the police.7 

 

7Tarwater successfully objected to Corporal Childs's testimony about what Marrant told him on the basis of 

hearsay. However, the same information was contained in Corporal Childs's report which was admitted into 

evidence over objection as a part of Missouri Department of Revenue's certified records. Regardless, an officer may 

rely on information provided by witnesses to establish probable cause to believe a person was driving in an 

intoxicated condition, even if the information is inadmissible hearsay. Auck, 483 S.W.3d at 444. 
17

Tarwater's request not to involve the police suggests a consciousness of guilt. Cf. Hager 

v. Dir. of Revenue, 284 S.W.3d 192, 197 (Mo. App. S.D. 2009) (noting that attempt to 

escape scene of accident "indicates consciousness of guilt"). Corporal Childs testified that

he next spoke with Tarwater on the scene, and that Tarwater admitted to driving; admitted 

he had a few beers before the accident; had slurred speech; had a strong odor of intoxicating 

beverages; and had watery, bloodshot eyes. "The odor of alcohol, slurred speech, and 

glassy, bloodshot eyes are indicia of intoxication." Stanton, 616 S.W.3d at 408. Corporal 

Childs's observations were made within a short interval after Tarwater was known to have 

been driving. "[A] brief lapse of time between a defendant's driving and being seen in an 

intoxicated condition requires less exacting evidence of the defendant's intoxication." State 

v. Davis, 226 S.W.3d 927, 929 (Mo. App. W.D. 2007); see also State v. Johnston, 670 

S.W.2d 552, 557 (Mo. App. S.D. 1984) (holding that an interval of less than thirty minutes 

between a defendant's known driving of a vehicle and the defendant being observed in an 

intoxicated condition supports a conviction of driving while intoxicated). Corporal Childs 

also testified that Tarwater refused to submit to requested field sobriety tests. While there 

is no requirement that a driver participate in field sobriety tests, "the refusal to take field 

sobriety tests constitutes evidence of intoxication in administrative license proceedings." 

Turner v. Dir. of Revenue, 609 S.W.3d 492, 498 (Mo. App. W.D. 2020). 

Based on the aforesaid evidence, the trial court's conclusion that Corporal Childs 

had reasonable grounds to believe that Tarwater was driving while intoxicated was not an 

abuse of discretion. The trial court's additional finding that "[Tarwater] consumed a pint 

of vodka after [a] minor accident" is not inherently inconsistent with this conclusion, given 
18

the short interval of time between the accident and Tarwater's reported consumption of 

vodka, and his observed condition on the scene. That is because "it often takes thirty 

minutes or more for alcohol that is imbibed to enter the bloodstream to such a degree as to 

produce intoxication." Davis, 226 S.W.3d at 929-30 (quotation omitted) (citing 2 DONALD 

H. NICHOLS & FLEM K. WHITED III, DRINKING/DRIVING LITIGATION: CRIMINAL AND 

CIVIL sections 14.3, 14.27 (2d ed. 1998)); cf. State v. Milligan, 516 S.W.2d 795, 799 (Mo. 

App. 1974) (upholding a conviction for driving while intoxicated where driver possessed 

strong indicia of intoxication on the scene and officers arrived within ten minutes of 

accident, even though defendant testified he consumed alcohol after the accident); State v. 

Chester, 445 S.W.2d 393, 397-98 (Mo. App. 1969) (conviction of driving while intoxicated 

affirmed where trooper arrived within fifteen minutes to visibly intoxicated defendant, 

though defendant testified he consumed alcohol after the accident and before the trooper 

arrived). It is noteworthy that both Milligan and Chester affirmed convictions for driving 

while intoxicated, despite some evidence of post-accident consumption of alcohol. The 

level of proof necessary to show probable cause for revocation of a driver's license for 

refusal to submit to a test is "substantially less" that that required to establish guilt beyond 

a reasonable doubt for the charge giving rise to a driver's arrest. Hager, 284 S.W.3d at 

197. 

Based on the evidence in this case, the Judgment cannot be affirmed on the 

alternative basis that there were no reasonable grounds to believe that Tarwater was driving 

a motor vehicle while in an intoxicated condition. Tarwater's contention to that effect, 

raised as a cross-appeal, is denied.
19

Conclusion

The trial court's Judgment is reversed. This matter is remanded to the trial court 

with instructions to enter a judgment sustaining the revocation of Tarwater's driving 

privileges. 

__________________________________

Cynthia L. Martin, Judge

All concur