JACOB DANIEL SIMON, ) 

 ) 

 Petitioner-Appellant, ) 

 ) 

vs. ) No. SD34304 

 ) 

DIRECTOR OF REVENUE, ) Filed: October 27, 2016 

STATE OF MISSOURI, ) 

 ) 

 Respondent-Respondent. ) 

APPEAL FROM THE CIRCUIT COURT OF LACLEDE COUNTY 

Honorable Larry W. Winfrey Jr. 

AFFIRMED

 Jacob Daniel Simon ("Driver") appeals from the trial court's judgment 

affirming the administrative revocation of his driver's license. Driver argues it 

was against the weight of the evidence for the trial court to find Driver did not 

make a statutorily valid refusal to submit to a breath alcohol test. Driver's 

argument is without merit, and the trial court's judgment is affirmed. 

Factual and Procedural Background 

 On August 1, 2015, Missouri State Park Ranger, Terry Shaw ("Ranger 

Shaw"), stopped Driver in Bennett Spring State Park for driving while 
2 

intoxicated. During the course of the stop, Driver stated he had been drinking, 

showed several indicators of intoxication on each field sobriety test administered 

and refused to complete a portable breath test. Driver stated, "Well, I'm not 

going to blow. I'm not going to blow at the jail either. You can just arrest me 

then." At the jail, Ranger Shaw read Driver the provisions of the implied consent 

law from a form, and Driver again refused to take a breath test. Ranger Shaw 

issued Driver a revocation notice for refusal to submit to the breath alcohol test. 

 Driver filed a petition for review of the revocation. A trial was held on 

December 9, 2015, and the trial court upheld the revocation. Driver appeals. 

Discussion 

 Driver's sole point on appeal is an against-the-weight-of-the-evidence 

challenge alleging Driver did not have sufficient information to make a statutorily 

valid refusal to submit to the breath test. He argues he was not advised of the 

purpose of the test because Ranger Shaw failed to check one box on the alcohol 

influence report form. The box that remained unchecked was located next to the 

statement which informs the suspect that the purpose of the breath test is to 

determine the alcohol content of the suspect's blood. For this reason, Driver 

argues his refusal was not a valid statutory refusal. Driver's argument ignores the 

standard of review and ignores Ranger Shaw's testimony. 

 "In appeals from a court-tried civil case, the 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." White v. 

Director of Revenue, 321 S.W.3d 298, 307-08 (Mo. banc 2010). "When the

facts relevant to an issue are contested, the reviewing court defers to the trial 
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court's assessment of the evidence." Id. at 308. "A trial court is free to disbelieve 

any, all, or none of that evidence." Id.

 Even though an against-the-weight analysis requires some consideration 

of evidence contrary to the result below, the appellate court still must defer to the 

credibility determinations made by the trial court. Houston v. Crider, 317 

S.W.3d 178, 186 (Mo. App. S.D. 2010). Such an argument requires the appellant 

to: 

(1) identify the trial court's finding he seeks to challenge as against 

the weight of the evidence; (2) identify all favorable evidence 

submitted during trial that would support that finding; (3) identify 

evidence contrary to the trial court's finding; and (4) explain why, 

in light of the whole record, the supporting evidence is so lacking in 

probative value that the trier of fact should have reached a different 

conclusion. 

O'Gorman & Sandroni, P.C. v. Dodson, 478 S.W.3d 539, 544 (Mo. App. 

E.D. 2015). "Where the appellant fails to follow this framework, the appellant's 

argument is 'analytically useless and provides no support' for his or her 

challenge." Id. (quoting In re Marriage of McDaniel, 419 S.W.3d 828, 833 

(Mo. App. S.D. 2013)). 

 The issues in a revocation case based on a refusal to submit to a chemical 

test are: "(1) whether or not the person was arrested or stopped; (2) whether the 

officer had reasonable grounds to believe that the person was driving a motor 

vehicle while in an intoxicated or drugged condition; and (3) whether or not the 

person refused to submit to the test[.]" Neff v. Director of Revenue, 437 

S.W.3d 394, 396 (Mo. App. S.D. 2014) (quoting Hinna v. Director of 

Revenue, 77 S.W.3d 616, 620 (Mo. banc 2002)). "Should the trial court 

determine any issue not to be in the affirmative, the Director shall be ordered to 
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reinstate the driver's license." Mayfield v. Director of Revenue, 100 S.W.3d 

847, 849 (Mo. App. S.D. 2003). As previously stated, Driver concedes the only 

issue here is whether Driver refused to submit to a breath test. 

 The implied consent law demands that an arrestee receive certain 

information prior to being asked to submit to a chemical test to determine blood 

alcohol content. § 577.041.1;1 Mayfield, 100 S.W.3d at 850. Specifically, 

[t]he request of the officer 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 and that the person's license shall be immediately 

revoked upon refusal to take the test. 

§ 577.041.1. Thus, "[r]evocation is conditioned upon an officer making a 

'statutorily sufficient "request"' that a driver submit to chemical testing." 

Mayfield, 100 S.W.3d at 850 (quoting McMaster v. Lohman, 941 S.W.2d 

813, 816 (Mo. App. W.D. 1997)). "No refusal is valid if this statutorily necessary 

information is not conveyed." Id. (quoting Hinton v. Director of Revenue, 

990 S.W.2d 207, 208 (Mo. App. W.D. 1999)). 

 Nevertheless, "[n]o particular words need to be used by the officer so long 

as he accompanies the request with the requirements of the statute as to the 

reasons for the request and the possibility of license revocation if the request is 

refused." Sell v. Goldberg, 601 S.W.2d 665, 666 (Mo. App. S.D. 1980). For 

example, an inference that the officer conveyed the necessary information may be 

inferred from the fact that the officer explained the test procedure to the driver. 

Corum v. McNeill, 716 S.W.2d 915, 917 (Mo. App. E.D. 1986). 

 

1

 All statutory references are to RSMo Cum. Supp. (2013). 
5 

Here, there was ample evidence from which the trial court could 

reasonably infer Ranger Shaw read Driver the statement that the purpose of the 

test was to determine the alcohol content of Driver's blood. At trial, when 

discussing the alcohol influence report, Ranger Shaw explained he "read [Driver] 

[the] Implied Consent." The prosecutor then asked Ranger Shaw whether he 

used the alcohol influence report form, and Ranger Shaw replied, "I explained to 

him, you know, went over the AIR, read him Implied Consent. . . . There's so 

many things on that form, I make sure I go from one end to the other of it[.]" He 

also testified, "I read every single thing on those pages." During the prosecutor's 

questioning, Ranger Shaw was further asked: 

Q. You read word for word; is that right? 

A. Yes, yes. 

Q. Okay. When you get finished, last question, having been 

informed of the reasons for the requesting the test, will you 

take the test, what's he say? 

A. He says he would not. 

 After Ranger Shaw finished testifying, the trial court received Exhibit A 

which included a copy of the alcohol influence report. The portion of the alcohol 

influence report which dealt with the implied consent warning is shown below: 
6 

Together, Ranger Shaw's testimony and the form allow an inference that Driver 

was informed of the purpose of the test. 

 Defendant relies on the fact that Ranger Shaw answered "Yes" when the 

prosecutor asked whether Ranger Shaw read Driver "every mark that [he] 

checked on page 2 of" the alcohol influence report. Defendant claims this 

testimony, combined with the fact that the box next to the assertion that the 

purpose of the test was to determine Driver's blood alcohol content was not 

checked, shows Driver was not actually informed the purpose of the test was to 

determine Driver's blood alcohol content. However, Ranger Shaw testified he did 

read "every single thing on those pages[,]" and the trial court was entitled to 

believe this testimony. That evidence is favorable to the trial court's finding so 

without accounting for that evidence and explaining how it lacks probative value, 

Driver's argument is "analytically useless." See O'Gorman, 478 S.W.3d at 544. 

The trial court's finding was not against the weight of the evidence. 

Decision 

 The trial court's judgment is affirmed. 

MARY W. SHEFFIELD, C.J. – OPINION AUTHOR 

JEFFREY W. BATES, P.J. – CONCURS 

DON E. BURRELL, J. – CONCURS