# In the Missouri Court of Appeals

**Eastern District**

DIVISION ONE

MICHAEL AUCK

, ) No. ED102 570

)

Respondent

, )

)

vs. ) Appeal from the Circuit Court

) of St. Louis County

) 14SL

- AC00530

)

D IRECTOR OF REVENUE, ) Honorable Dale W. Hood

STATE OF MISSOURI )

)

Appellant

. ) FILED: February 23 , 2016

OPINION

The Director of Revenue of the State of Missouri (the Director) appeals from the trial

court’s entry of judgment reinstating the driving privileges of Michael Auck (Driver) after h is

privileges were revoked by the Director pursuant to Section 577.041 RSMo 2000

. 1 We reverse

and remand

.

Factual and Procedural Background

On Janua r y 1, 2 0 14, Officer Scheetz and Sergeant Hagen of the Sunset Hills Police

Department were dispat c hed to Hel e n Fitzgerald’s pub regarding a p eace disturbance i n vo l ving

a vehicle that almost str u ck a pe d est r ian. Of f

icer Johnson

, also of the Sunset Hills Po l ice

D e par t m ent

, who was on an u n related call at th e D a y s Inn at the s a m e a d dress, r e sponded to t he

1 Unless otherwise indicated, all further statutor y references are to RSMo 2000 as amended.2 pub af ter completing his assig n m ent t here. O ff icer Johnson then contact e d O ff icer Scheetz, who

in f or m ed h i m th a t he had obtained stat e m e nts f rom three e m p l o y ees of the pub all of whom

r eported observ ing a p erson driving a silver t r uck o ut of the b a r’s parking lot, and obser v ing that

s a m e p erson retu r n to the parking lot in t h e truck approx i mate l y 1 5 m i nutes later, at wh ich

t i m e one of the witnesses c ontacted the Sunset H i lls Po l ice D e par t m ent. Th e th ree wit nesses ’

written statements were collected and kept as evidence.

One of the witnesses, Gregory W al t man (Waltman) , identi f ied a silver truck as the

v ehicle b e ing driv e n b y Driver

. O ff icer Johnson a sked Wa l t m a n if he c o uld id e n t i f y the driver

of the truck, and W al t m a n immediate l y l o oked i n the direct i on of Driver

, who was standi n g

next to Of f

icer Scheetz, pointed at Driver

, a n d stated “the gentl e m e n next to the Sunset Hills

Po l i ce O ff icer (Scheetz).”

Of f

icer Johnson then approached Driver a n d informed him t hat people were s a y i ng he was

driving reck l e s s l y in t he parking l o t. O ff icer Johnson noticed Driver was s p eaking loud l y

, us e d

pro f ani t y , and s ee m ed ang ry

. Driver’s s peech w as s l urred, his e y es were wate r y and bloo d sho t

,

he s m elled stron g l y of alcohol, a n d he was s w a y i ng c o nsidera b l y f rom side t o side. When asked

why people were saying he was driving recklessly, Driver stat e d he pa r ked his truck a whi l e

ago and had been at t h e bar all night. Driver stated he d id get into an arg u ment with a f riend

earlie r , but that “ he n ever le f t t h e parking l o t that he co uld r e m e m b er. ”

Of f

icer Johnson asked Drive r if he had consumed a n y a lcohol be f ore he drove

aw a y f r o m the pub. Driver did not de n y that he drove a wa y f r o m the bar, a n d

replied

, “Of course I h ave been d ri n king it i s New Year s .” Officer Johnson then asked h i m

if he had c ons u m ed a n y into x ic a nts a f ter he returned t o the pub. Driver r e plied that he d i d not

b ecause the boun c ers wo u ld n o t let h i m back in the bar. However, Driver d i d not de n y that he

had r et urned to t he bar in h i s vehicl e

. Based on Officer Johnson’s observations of Driver, he3 asked Driver to perform a series of field sobriety tests. Driver p er f or m ed poor l y on e a ch test and

re f used to per f orm t he alphabet and count i ng t est s

.

In his report, O ff icer J o hnson stated: “ [ b]ased on witness stat e ments t hat [ Driver ] was

driving his m o t or vehicle reckles s l y , a d m i ssion to drin k ing a l cohol, and the strong odor of

intoxican t s on his breath, his s l urred speech, and the re s ults of the f ield sobrie t y tests, I a d vised

[ Driver ] he was under a rrest f or Driving W hile Int o xicated and Carele s s and Reckle s s driv i ng o n

a parking lot.” Officer Johnson then transported Driver t o the Sunset H i lls Police Depa r t m ent

,

read Driver the Mi s souri’s Implied Consent war ni ng f r om the Alcohol I n f luence Report, and

Driver re f used to s ub m it to a breath t est.

On January 1, 2014, the Di r ector revoked Driver ’s lic e nse f or re f using to s u b m it t o a

ch e m i c al test in connection with his operation of a motor vehicle while allegedly intoxic ated

.

On Janua r y 10, 2 014, Driver f iled a Petiti o n f or Review with the trial court

. At trial, on

November 19, 2014, the Director o f f

ered Exhibit A, inc l uding a co p y of O f f

icer Johnson’s

police report, in t o evidenc e

. Driver m ade t he f ollowing o bjectio n :

W h at I object to, in te r m s of taking a whol es ale introduc t ion of Ex h ibit

A, is that there are n u m e rous stat e m e nts m ade b y t h ird parti e s who a re not police

o ff icers. I rea l i z e that the Depar t m e nt of Revenue ’ s pos i tion i n t his is that even

those l a y witness e s ’

, third par t y s tat e m ents are a d m i s sible. I would ob j ect to

t h ose being con s idered as p art of the record her e

. Those third per s ons, t hose

l a y w itnes s es, h a d no b u siness d u t y to tran s mit a n y of the in f o r m ation or re p ort

a n y of the in f o r m a tion in there, a nd I th i nk that that is hea r s a y

. And then I would a lso point out, Judge, t hat I ’ m a ware of the Do u gh t y v

. Director of Revenue, which is the Missou r i Supr e m e Cou r t case that talks about

hears a y

, but i n D o ugh t y

, a ll of those witnesses i n there, w h en th e y su b m itted it

on the re c ord, were police o ff ice r s who do have a b usin e ss du t y to tran s mit the

in f o r m a tion th e y get at t h e t i me

— at or n ear the t i m e of their investigat i on or th e ir

a r res t

. This case has been tr i ed be f ore in a cri m in a l m atte r

. Those l a y w i tnesse s

were presented b e f ore. I don ' t anti c ipate

— I do n’ t see a n y of those l a y witnesses

in court tod a y

. As it relates to tho s e third par t y sta te m en t s m a d e b y the l a y

wi t nesses, I wou l d like to preser v e m y objec t ion as tho s e being hears a y

.4 The Director respo n d e d that there was no objection to the civili a n w itnesses with the e xce p tion

of stat e ments b y W a l t man whose statements were permissible to e stablish p r obable cause for the

arrest. The Tra ff ic Com m i ssi o ner indicated that she would s u stain the objection w i t h regard to

the third par t y witnesses only if th e y were being o ff ered f or the t ruth of the m a tter as s erted.

The Dire c tor t hen ca l l e d O ff icer Johnson a s a witness. T h e D irector a s ked h i m whether

he spoke to W al t m a n, and h e replied that he d i d. The Direc t or then as k ed h i m: “ Wh a t, if

a n y thin g

, did y o u r conver s ation with M r. W al t man e n t a il ? ” Driver made the f ollowing

hear s a y ob j ection: “I would just o bject to t he hea r s a y , Your Honor.” The C o m m i s sioner sta t e d :

“Sustain e d. Unless y o u c a n tell m e what it’s being o ff ered f or

. ” T he Dire c tor replied: “It ’ s

o ff ered to s h ow t h e prob a ble cause f or the witn e ss that Petiti o ner w as driving.” The

C o mmission e r th e n sustained t he objec t io n

.

O n cros s

- e x a m i nation, Officer Johnson testi f ied he did not perso n al l y o b s e rve Driver

driv i ng. At the cl o se of trial, Driver ar g ued t hat th er e was no e v idence to support a f inding

t hat he was drivi n g that night, and that there w as there f ore no p robab l e cause f or the a r rest t h at

would give r i se t o Driver bei n g reque s ted t o su b mit t o a c he m ical ana l y sis of his blood alcohol

co n ten t

.

On Dec e m ber 16, 2 01 4

, the trial court issued its j u dg m e nt f inding that the a r resting

o ff ic e r did not have pro b able cause to arrest Driver f or driv i ng w hile i ntox i cated and that

Driver did not re f use to s u b m i t to a ch e mical t e st be c ause “there was n o a d m i ssible e vidence of

operation of a m otor v e hicle b y Pe t itioner. The court does not f ind the police report clear,

credible, or persuas i ve on th i s po i nt.” This appeal follows.5 Standard of Review

We review a trial court’ s judgment reinstating driving privileges following an

administrative suspension or revocation under the standard of Murphy v. Carron , 536 S. W.2d 30,

32 (Mo. banc 1976). White v. Director of Revenue , 321 S.W.3d 298, 307

- 08 (Mo. banc 2010).

This Court will affirm the decision of the trial court if it is supported by substantial evidence, it is

not against the weight of the evidence, and it does not erroneously or declare or apply the law.

Id

. We review declarations of law de novo

. Moore v . Director of Revenue , 351 S.W.3d 286,

287 (Mo. App. W.D. 2011).

Discussion

The Director raises three points on appeal that are interrelated. For ease of discussion,

we address these points together. Essentially, t he Director argues that the trial cour t erred in

sustaining Driver’s hearsay objections and in finding there was no admissible evidence of

Driver’s o peration of a motor vehicle and in reinstating his driving privileges

. We agree.

On judicial review of admini strative revocation of a driver ’ s l icense for failure to submit

to a breath test, the proper issue for the trial court to consider was whether the police officer,

given the facts and circumstances known to him at the time, had reasonable grounds to believe

that the driver drove while intoxi cated, not whether the driver actu ally drove while intoxicated.

J a rboe v. Director of Revenue

, 4 34 S

. W.3d 96, 99 ( Mo. App. E

. D

. 2014).

T he trial court i s l i m it e d to dete r m ini n g on l y t h r e e issues: (1) whether the driver was

arrested, (2) whether the of f

ice r had reasonable grounds to b elieve t h e driver was d r iving

w hile into x ic a ted, a n d (3) whether t he driver re f used to su b m it to a ch e m ical t e st. Langley v.

Director of Revenue , 467 S.W.3d 870, 872 (Mo. App. W.D. 2015); S ection 577.0 4 1 .4. T he

Dire ct or has t he b urden to p r ove b y a pr e ponder a n c e of the evi d ence t hat the of f

icer who6 requested the test had reason a ble grounds to beli e ve that the person was driv in g while

intoxica t ed; there is no requirement that the Director prove that the per s on actual l y w a s

driv ing, or that he actual l y was i ntoxicat e d while doi n g so. Hin n ah v. Dir. of Re v enu e , 77

S

. W .3d 6 16, 62 1

- 22 (Mo. banc 2 002); J a rboe

, 4 34 S

. W.3d at 99

.

“R easo n able grounds” i s virtually s y n o n y m o us with “ p r o bable cause.” J a rboe

, 4 34

S

. W.3d at 98 ( Mo. App. E

. D

. 2014). “ Probable cause to arrest ex ists when the arresting

officer’ s knowledge of the particular facts and circumstances is suffici ent to warrant a prudent

person’ s belief that a su spect has committed an offense.” Hin n ah , 77 S

. W .3d at 62 1 (quoting

Sta te v. Tokar , 918 S.W.2d 753, 767 (Mo. banc 1996) ) . Whether there is probable cause to arrest

depends on the information in the officer’s possession prior to the arrest. Id

. (citing State v.

Wiley , 522 S.W.2d 281, 287 (Mo. banc 1975) ) . There is no precis e test for determining whether

probable cause exists; rather, it is based on the particular facts and circumstances of the

individual case. Id

. (citing State v. Pruitt , 479 S.W.2d 785, 788 (Mo. banc 1972) )

. Additionally,

the officer need not have persona lly seen a driver driving or observed that he was intoxicate d at

the time of the accident; instead, t he officer may rely upon circumstantial evidence that gives rise

to a logical inference that the fact exists

. Co f fin v. D irec t or of Reve n u e

, 277 S

. W

. 3d 86 5, 8 69

(M o

. App. W

. D. 2009 )

.

Finally

, it is well established that stat e ments rel a y ed to the arresting o ff icer b y

e y ewitnes s es, law en f orce m e nt o ff icers, and r a dio dis p atch, whi c h would be c o nsidered

hears a y if of f

ered to prove the tr u th of the m a tter asser t ed, are a d m issible to es t ablish a basis

f

or a b e lief that reasona b le gro u nds to arrest f or driv i ng while into x icated ex i ste d

, and th a t a

trial court’s exc l usion of such stat e ments i s reversible error. J a rboe

, 434 S

. W .3d at 99;

Jarboe v. Direc tor of R evenue , 468 S.W.3d 478, 481 (Mo. App. E.D. 2015).7 At trial, Driver m a de a hears a y o bjection to t h e Direct o r’s E xhibit A, which conta i ned

t he of f

icer’s alcohol in f luence report, 2 on the gr o und that the witness s t at e m ents identi f y ing

Driver as the dr iver contained therein were hears a y

. T h e Director’s counsel responded to his

o bj e ction b y arguing t h at stat e m ents m ade b y the witnesses were a d m issible under Mis s ouri law

f

or the purp ose of showing that Of f

icer Johnson had reasonable groun d s to believe th a t the

driver was driv i ng w h ile in to xicated. He noted in particular that the stat e m ent of Wal t m an, who

direct l y i d enti f ied Driver as the driver to O ff icer John s on, would be a d m i ssib l e to show probable

ca u se.

According to the a l co h ol in f luence report, W al t man identi f ied a s ilver truck as the vehic l e

bei n g dr i v e n b y Driver

, and i denti f ied Driver as the d r iver of the vehicle. This evidence, which

the trial court d e e m e d ina d m i ssible, w a s necessa r y to show that the o ff icer had pr o bable cau s e to

believe Driver was driv i ng w hi l e int o xic a ted pr i or to arresting h i m. The o ff i cer speci f ical l y

not e d i n his repo r t that h i s d e cision to a r rest Driver f or driving while int o xicated was “ [ b]ased

on witness s tat e m en t s that Mr. Auck was driving his m otor v e hicle reckles s l y

. ” This

evidenc e , if it had not been excluded, wo u ld by itself be s u f f

icient evidence to show that

reasonable g ro unds for the arrest existed. Of f

icer Johnson’s al c ohol in f luence report provided

enough i nf or m ation to establ i sh t hat Driver w a s arrested u pon rea s o n able groun d s to be l ieve that

he w a s drivi n g while i n toxicat e d and t hat he re f used to su b mit to a bre a th te s t.

I n f inding the Director produced “ no a d m i ssible evid e nce ” that Driver was operating a

m o tor vehicle while in t oxicated, the trial cou rt applied an incorrect l e gal standard and did not

eval u ate the evid en ce under S ecti o n 577 .0 4 1

. S ecti o n 577. 04 1 .4 does not require the Director to

2 O ff icer Johnson ’ s alcohol in f luence r ep ort was su b mitted i n t o evidence and was a d m i ssible

beca u se it w as certi f ied under Section 302.31 2

. Doughty v. Direct o r of Revenu e

, 3 8 7 S

. W

. 3 d

3 83, 388 ( Mo. banc 20 1 3).8 produce “a d m issible evidence of operation of a m otor vehicl e ,” but on l y requires the D irector

to sh o w t hat t he o ff icer had reasonable grounds to beli e ve the driver was drivi n g while

in t oxicated. J a rboe

, 434 S

. W .3d at 99

. U nd e r the plain words of t h e statute, t h e quest i on is not

whether t he p e rson a r rested ac t ual l y was d r iving b ut w h ether the o ff ic e r who reques t e d the

test had reasonable grou n ds to believe t h at the l icensee was drivi n g while int o xicated. H i nnah

,

77 S

. W

. 3d at 62 1

- 22

. Rather, the court need on l y c onsider whether there was reasonable

grounds/p r obable c a u s e to believe a person w as d riving w hile in t ox i cated. J a rboe

, 434 S

. W .3d

at 99

.

Here, the stat e ments of Waltman , O ff icer Scheetz, and Driver

, w o uld sup p ort a f inding

that O ff icer Johnson had reaso n able grounds t o belie v e Driver was dr i ving while intoxicated at

t h e t i m e of arrest; however, these were e r roneous l y rejected as i na d m issib l e b y the court.

The trial c ourt’s re fu sal to recei v e that e v i d ence was le g al error re quiring rev e rsal and remand

f

or consider a t i on of the excluded e vi d ence.

Conclusion

The trial court’s judgment is revers ed r e mand ed for further proceedings consistent with

this opinion.

____________________________ Mary K. Hoff, Judge

Robert G. Dowd, Jr., Presiding Judge and Roy L. Richter, Judge, concur.