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 tria l court's judgment affirming the administrative revocation of his driv er's license. Driver argues it was against the weight of the evidence for the tria l court to find Driver did not make a statutorily valid refusal to submit to a bre ath alcohol test. Driver's argument is without merit, and the trial court's ju dgment is affirmed.

Factual and Procedural Background On August 1, 2015, Missouri State Park Ranger, Terr y Shaw ("Ranger Shaw"), stopped Driver in Bennett Spring State Park fo r driving while2

intoxicated. During the course of the stop, Driver stated he had been drinking, showed several indicators of intoxication on each f ield sobriety test administered and refused to complete a portable breath test. Dr iver stated, "Well, I'm not going to blow. I'm not going to blow at the jail e ither. You can just arrest me then." At the jail, Ranger Shaw read Driver the pro visions 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 su bmit to the breath alcohol test. Driver filed a petition for review of the revocati on. A trial was held on December 9, 2015, and the trial court upheld the re vocation. Driver appeals. Discussion Driver's sole point on appeal is an against-the-we ight-of-the-evidence challenge alleging Driver did not have sufficient i nformation to make a statutorily valid refusal to submit to the breath test. He arg ues he was not advised of the purpose of the test because Ranger Shaw failed to ch eck one box on the alcohol influence report form. The box that remained unche cked was located next to the statement which informs the suspect that the purpos e of the breath test is to determine the alcohol content of the suspect's bloo d. For this reason, Driver argues his refusal was not a valid statutory refusa l. Driver's argument ignores the standard of review and ignores Ranger Shaw's testimo ny. "In appeals from a court-tried civil case, the tri al 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 revie wing court defers to the trial3

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 require s some consideration of evidence contrary to the result below, the appel late 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 argumen t 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 favora ble evidence submitted during trial that would support that find ing; (3) identify evidence contrary to the trial court's finding; and (4) explain why, in light of the whole record, the supporting eviden ce 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 t his framework, the appellant's argument is 'analytically useless and provides no s upport' 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 arres ted 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 conditio n; 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 t rial court determine any issue not to be in the affirmative, t he Director shall be ordered to4

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 r eceive certain information prior to being asked to submit to a che mical 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 reas ons 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 ma y 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 up on an officer making a 'statutorily sufficient "request"' that a driver su bmit 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 val id 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 us ed 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 lice nse 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 t he 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. (2 013).5 Here, there was ample evidence from which the trial court could reasonably infer Ranger Shaw read Driver the stateme nt 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, ha ving 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 co urt received Exhibit A which included a copy of the alcohol influence repo rt. The portion of the alcohol influence report which dealt with the implied conse nt warning is shown below:6

Together, Ranger Shaw's testimony and the form allo w an inference that Driver was informed of the purpose of the test. Defendant relies on the fact that Ranger Shaw answ ered "Yes" when the prosecutor asked whether Ranger Shaw read Driver "ev ery 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 weigh t 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