I. RECENT CASES (This section emphasizes developments in the appellate cases which have occurred since November of 1997).

A. “Operation” of a vehicle -- “driving” vs. “operating”

Subjects found to be “operating” motionless vehicles:

-- unconscious subject deemed to be operating vehicle where engine was running, lights were on, one foot was on brake pedal and one foot was on accelerator; subject was deemed to be “engaging the machinery” of the vehicle and in a position to regulate its movements -- State v. Wiles, 26 S.W.3d 436 (Mo.App.S.D. 2000);

--officer had probable cause to arrest subject passed out behind the wheel with engine running; “bright-line” test to operate a car is to cause its motor to function. Turning off the ignition does not constitute “operation” since it causes the car not to function -- Cox v. Director of Revenue, 98 S.W.3d 548 (Mo.banc 2003);

-- subject deemed to be operating vehicle when transmission was in “drive” and he had his foot on brake while engine was running -- State v. Mitchell, 77 S.W.3d 637 (Mo.App.W.D. 2002).

1. circumstantial evidence of driving -- evidence sufficient to establish operation where subject was passed out behind the wheel with engine running and transmission in neutral; subject had been sitting in parking lot for at least an hour, and nobody else was seen in or around the vehicle -- Baptist v. Director of Revenue 971 S.W.2d 366 (Mo.App.E.D. 1998); evidence sufficient to establish operation where subject was passed out behind the wheel with engine running; subject had only been sitting there for a few minutes when discovered -- Delzell v. Director of Revenue, 983 S.W.2d 633 (Mo.App.S.D. 1999).

a. Sufficient circumstantial evidence of driving where subject found unconscious next to a wrecked vehicle which was registered to him -- Cox v. Director of Revenue, 37 S.W.3d 304 (Mo.App.S.D. 2000); Heskett v. Director of Revenue, 62 S.W.3d 103 (Mo.App.S.D. 2001).

b.“90 minute rule” -- State v. Eppenauer, 957 S.W.2d 501 (Mo.App.W.D. 1997).

c. Evidence sufficient to establish probable cause to arrest subject who was sitting behind the wheel with the engine running, even though subject turning off ignition not considered to be “operation” -- Cox v. Director of Revenue, 98 S.W.3d 548 (Mo.banc 2003).

2. evidence insufficient to establish operation -- Bain v. Director of Revenue, 69 S.W.3d 117 (Mo.App.W.D. 2002); Mayberry v. Director of Revenue, 983 S.W.2d 628 (Mo.App.S.D. 1999); State v. Hughes, 978 S.W.2d 24 (Mo.App.W.D. 1998); House v. Director of Revenue, 997 S.W.2d 135 (Mo.App.S.D. 1999); Nightengale v. Director of Revenue, 14 S.W.3d 267 (Mo.App.W.D. 2000).

a. Insufficient evidence, either direct or circumstantial, to establish that subject was driving or operating vehicle; vehicle found in ditch, no evidence that she was behind the wheel, that the engine was running, that the keys were in the ignition or that the vehicle was registered to her, and she did not admit driving -- State v. Thurston, 84 S.W.3d 536 (Mo.App.S.D. 2002).

b. Insufficient evidence, either direct or circumstantial, to establish that subject was driving or operating vehicle; vehicle found in a parking lot with engine off, victim of hit-and-run could not identify vehicle or driver, no evidence to match damage to vehicle to victim’s vehicle, defendant denied driving (even though he had the vehicle’s keys in his pocket) -- State v. Anderson, 107 S.W.3d 447 (Mo.App.S.D. 2003).

c. Arrest for “actual physical control” insufficient to support suspension action; municipal ordinance proscribing being in actual physical control would be void under current state law. Weiland v. Director of Revenue, 32 S.W.3d 628 (Mo.App.W.D. 2000).

3. admissions sufficient to establish driving -- Cox v. Director of Revenue, 98 S.W.3d 548 (Mo.banc 2003); Weiland v. Director of Revenue, 73 S.W.3d 60 (Mo.App.W.D. 2002); Marsey v. Director of Revenue, 19 S.W.3d 176 (Mo.App.E.D. 2000); McDaniel v. Lohman, 989 S.W.2d 688 (Mo.App. 1999); Pappin v. Director of Revenue, 958 S.W.2d 591 (Mo.App. 1998); Pendergrass v. Director of Revenue, 4 S.W.3d 599 (Mo.App.E.D. 1999) (Observations of a lay witness, plus the subject’s admissions, sufficient to establish driving).

a. subject’s admissions alone sufficient to establish probable cause to arrest for DWI -- Misener v. Director of Revenue, 13 S.W.3d 666 (Mo.App.E.D. 2000).

b. evidence was sufficient to establish probable cause for the arrest, even though evidence did not establish which vehicle subject had been driving; subject’s admissions were sufficient to establish that he had been driving a vehicle -- Dickerson v. Director of Revenue, 15 S.W.3d 56 (Mo.App.W.D. 2000).

c. subject’s admissions sufficient to establish that she had been driving and was drunk at the time of the accident -- Oates v. Director of Revenue, 67 S.W.3d 664 (Mo.App.E.D. 2002).

d. “corpus delicti” -- State v. Girdley, 957 S.W.2d 520 (Mo.App.S.D. 1997); State v. Clarkston, 963 S.W.2d 705 (Mo.App.W.D. 1998); State v. Hammons, 964 S.W.2d 509 (Mo.App.W.D. 1998).

B. Grounds for stop -- necessity of showing valid stop

1. whether the underlying traffic stop was valid is irrelevant in “administrative DWI" and “refusal” proceedings; “exclusionary rule” does not apply in civil cases -- Riche v. Director of Revenue, 987 S.W.2d 331 (Mo.banc 1999); Jennings v. Director of Revenue, 992 S.W.2d 249 (Mo.App. W.D. 1999); Duncan v. Director of Revenue, 16 S.W.3d 745 (Mo.App.E.D. 2000).

2. valid stop of a minor must be shown in “zero tolerance” cases -- § 302.505, RSMo 2000.

3. Officer could rely on observations made outside of his jurisdiction to make a stop of a subject once back inside his jurisdiction -- State v. England, 92 S.W.3d 335 (Mo.App.W.D. 2002).

C. Probable cause/reasonable grounds for arrest

1. “Hearsay” evidence is admissible establish probable cause; it is not relied upon to prove the truth of the matter, but rather to explain the basis for the belief that probable cause existed -- Parres v. Director of Revenue, 75 S.W.3d 311 (Mo.App.E.D. 2000); McCabe v. Director of Revenue, 7 S.W.3d 12 (Mo.App.E.D. 1999); State v. Holt, 695 S.W.2d 474 (Mo.App.E.D. 1985).

2. Probable cause to believe subject was driving:

a. Officer had probable cause to believe subject was driving, based upon circumstances and admissions of subject, even though another subject subsequently claimed to have been driving -- Hinnah v. Director of Revenue, 77 S.W.3d 616 (Mo.banc 2002).

b. Officer had probable cause to believe subject was driving where subject was ID’d by victim of hit-and-run, even though subject denied driving -- Smith v. Director of Revenue, 56 S.W.3d 464 (Mo.App.S.D. 2001).

c. Officer had reasonable grounds to believe subject was driving even though subject denied driving; subject was located an a convenience store a short distance from accident scene, vehicle had been assigned to the subject that evening, subject was injured, and subject claimed vehicle must have been stolen from the bar but declined to file a stolen vehicle report -- Kinsman v. Director of Revenue, 58 S.W.3d 27 (Mo.App.W.D. 2001).

d. Officer had reasonable grounds to believe subject was driving while intoxicated where subject was located at a convenience store more than an hour after the accident, where subject did not claim he became intoxicated after the accident at the time of the arrest -- Swanberg v. Director of Revenue, 122 S.W.3d 87 (Mo.App.S.D. 2003).

e. Officer had reasonable grounds to believe subject was driving while intoxicated where several civilian witnesses reported subject was drunk prior to ramming ex-wife’s car, even though subject was consuming intoxicants when subsequently located at home and claimed to have been drinking since arriving home -- Tolliver v. Director of Revenue, 117 S.W.3d 191 (Mo.App.S.D. 2003).

3. Probable cause to believe subject is intoxicated:

a. Issue to be determined in license revocation case is whether officer had probable cause to believe the subject was intoxicated, not whether the subject actually was intoxicated -- Soest v. Director of Revenue, 62 S.W.3d 619 (Mo.App.E.D. 2001) (weaving, “failure” of HGN, and admission of drinking one beer gave officer reasonable grounds).

b. Probable cause can be developed without field sobriety tests -- Chancellor v. Director of Revenue, 984 S.W.2d 857 (Mo.App.W.D. 1998); Knipp v. Director of Revenue, 984 S.W.2d 147 (Mo.App.W.D. 1998); Terry v. Director of Revenue, 14 S.W.3d 722 (Mo.App.W.D. 2000); Marsey v. Director of Revenue, 19 S.W.3d 176 (Mo.App.E.D. 2000); Hunt v. Director of Revenue, 10 S.W.3d 144 (Mo.App.E.D. 1999).

(1). Officer had probable cause, based upon observations of subject, even though SFST’s were discounted due to non-compliance with NHTSA standards -- Brown v. Director of Revenue, 85 S.W.3d 1 (Mo.banc 2002).

(2). Subject’s refusal to submit to field sobriety tests can contribute to probable cause -- Edmisten v. Director of Revenue, 92 S.W.3d 270 (Mo.App.W.D. 2002).

c. Probable cause found where subject scored 5 out of 6 on HGN, had odor of intoxicants, glassy eyes, was “not exactly sure-footed” and admitted drinking pitcher of beer -- Peters v. Director of Revenue, 35 S.W.3d 891 (Mo.App. S.D. 2001).

d. Probable cause found where officer dispatched in reference to an intoxicated person, subject had moderate odor of alcohol, her eyes were bloodshot, and she was excited and combative. Hopkins-Barkin v. Director of Revenue, 55 S.W.3d 882 (Mo.App.E.D. 2001).

e. Probable cause found where subject was blocking traffic, had a moderate odor of intoxicants, bloodshot and watery eyes, slurred speech, and scored two out of four on one-leg stand -- Melvin v. Director of Revenue, *** S.W.3d *** (Mo.App.E.D. 2004).

f. Evidence was sufficient to establish probable cause for arrest, even though most of the observations were consistent with either intoxication or injuries sustained in the accident -- Rinne v. Director of Revenue, 13 S.W.3d 658 (Mo.App.W.D. 2000). Evidence was sufficient to establish probable cause for arrest, even though most of the observations were consistent with either intoxication or injuries sustained in the accident, and officer did not detect odor of intoxicants -- Rain v. Director of Revenue, 46 S.W.3d 584 (Mo.App.E.D. 2001).

g. officer had probable cause to arrest for DWI more than two hours after the accident -- Misener v. Director of Revenue, 13 S.W.3d 666 (Mo.App.E.D. 2000)

h. scientific foundation need not be shown for field sobriety tests -- Eggleston v. Lohman, 954 S.W.2d 696 (Mo.App.W.D. 1997).

i. scientific foundation established for HGN -- State v. Myers, 940 S.W.2d 64 (Mo.App.S.D. 1997).

j. failure of HGN contributes to probable cause -- Parrish v. Director of Revenue, 11 S.W.3d 652 (Mo.App.E.D. 1999) .

k. PBT’s -- § 577.021

(1) Reversible error to admit PBT “results” where trooper merely testified that subject “failed” the PBT test -- State v. Duncan, 27 S.W.3d 486 (Mo.App.E.D. 2000).

(2) Do not have to establish foundation to admit PBT “results” -- State v. Stottlemyre, 35 S.W.3d 854 (Mo.App.W.D. 2001).

(3) PBT apparently relied upon to establish intoxication -- State v. Buckler, 988 S.W.2d 565 (Mo.App.W.D. 1999).

l. probable cause determined by collective knowledge of all the officers participating in the arrest; officer can rely on information provided by another officer for probable cause -- Burleson v. Director of Revenue, 92 S.W.3d 218 (Mo.App.S.D. 2002); Eskew v. Director of Revenue, 17 S.W.3d 159 (Mo.App.E.D. 2000); Farin v Director of Revenue, 982 S.W.2d 712 (Mo.App.E.D. 1998); McCabe v. Director of Revenue, 7 S.W.3d 12 (Mo.App.W.D. 1999); Simmons v. Director of Revenue, 3 S.W.2d 897 (Mo.App.S.D. 1999); Prozorowski v. Director of Revenue, 12 S.W.3d 405 (Mo.App.E.D. 2000); Myers v. Director of Revenue, 9 S.W.3d 25 (Mo.App.E.D. 1999).

m. probable cause to arrest for DWI may be developed after subject is already under arrest for a different charge -- Dixon v. Director of Revenue, 118 S.W.3d 302 (Mo.App.S.D. 2003).

n. Arrest may be based upon information received over police scanner -- Calicotte v. Director of Revenue, 20 S.W.3d 588 (Mo.App.S.D. 2000).

4. Insufficient probable cause to believe subject is intoxicated:

a. Court could find that officer lacked probable cause where officer admitted that he could not tell from odor of alcohol and bloodshot eyes whether subject was intoxicated, and also admitted that subject’s problems with balance could have been due to subject just waking up and inclement weather -- Hinnah v. Director of Revenue, 77 S.W.3d 616 (Mo.banc 2002).

b. Collective knowledge of the officers was insufficient to establish probable cause where one officer knew subject had left scene of an accident and another officer subsequently found subject in an intoxicated condition, but neither officer had any information that subject had been driving while intoxicated -- Nightengale v. Director of Revenue, 14 S.W.3d 267 (Mo.App.W.D. 2000).

D. Intoxication

1. observations, field sobriety tests and PBT sufficient to establish intoxication, even though BAC subsequently tested at .094% -- State v. Buckler, 988 S.W.2d 565 (Mo.App.W.D. 1999).

2. observations by officers of subject’s condition sufficient to establish intoxication, even without a BAC test -- State v. Teaster, 962 S.W.2d 429 (Mo.App.S.D. 1998).

3. not necessary for officer to actually offer opinion that subject was intoxicated; testimony reflecting observations that subject was intoxicated sufficient to support conviction -- State v. Vanosdol, 974 S.W.2d 650 (Mo.App.W.D. 1998).

4. officer could testify about observations of subject’s intoxication, even though he was outside of his jurisdiction -- State v. Collins, 72 S.W.3d 188 (Mo.App.S.D. 2002); State v. Cross, 34 S.W.3d 175 (Mo.App.W.D. 2000).

5. abuse of discretion for court to allow officer to testify that, in his experience, everyone who scored 6/6 on HGN had a BAC of .10 or higher -- State v. Rose, 86 S.W.3d 90 (Mo.App.W.D. 2002).

E. Implied Consent

1. Arrest -- Merely telling a subject that she was under arrest, without any actual physical restraint of the subject, no matter however slight, or without the subject submitting to the officer’s show of authority, was insufficient to establish that she was arrested as required by statute -- Callendar v. Director of Revenue, 44 S.W.3d 866 (Mo.App.W.D. 2001). However, no further restraint necessary where subject already strapped to a back board and the officer made a "direct show of authority" --Saladino v. Director of Revenue, 88 S.W.3d 64 (Mo.App.W.D. 2002).

*** This issue is currently pending in the Missouri Supreme Court -- Smither v. Director of Revenue ***

2. implied consent warning (apparently) given after refusal invalidates refusal action -- Hinton v. Director of Revenue, 990 S.W.2d 207 (Mo.App.W.D. 1999).

3. Subject not prejudiced by alleged failure to give her the “Implied Consent” warning prior to the test, since she agreed to take the test after consulting with an attorney; purpose of the warning is to advise a driver of the consequences of refusing the test -- Douglass v. Director of Revenue, 10 S.W.3d 199 (Mo.App.W.D. 2000).

Note: If there is a discrepancy between the time reflected by the breath testing instrument and the source of the balance of the times reflected on the AIR, please note the discrepancy on the AIR!

4. bare assertion that “Implied Consent” warning was read “off the form” sufficient where no objection otherwise raised -- Zimmerman v. Director of Revenue, 988 S.W.2d 583 (Mo.App. 1999).

5. If subject asks to speak to an attorney, must be given 20 minutes after implied consent is read to contact attorney, unless subject affirmatively abandons attempts -- Lorton v. Director of Revenue, 985 S.W.2d 437 (Mo.App.W.D. 1999). Long v. Director of Revenue, 65 S.W.3d 545 (Mo.App.W.D. 2001). Looking at the phone book but refusing to use phone constitutes an abandonment of right to contact counsel and supports the refusal revocation -- Roberts v. Wilson, 97 S.W.3d 487 (Mo.App.W.D. 2002). Subject who asked for counsel, but then spent the next 20 minutes in the bathroom, was deemed to have had a reasonable opportunity to contact counsel -- Christensen v. Director of Revenue, *** S.W.3d *** (Mo.App.S.D. 2004).

6. It is not necessary to wait out the balance of the 20 minutes if the subject completes the phone call and then unequivocally refuses the test -- Hunter v. Director of Revenue, 75 S.W.3d 299 (Mo.App.E.D. 2002). Nor is it necessarty to wait out the balance of the 20 minutes if the subject agrees to take the test. Crabtree v. Director of Revenue, 65 S.W.3d 557 (Mo.App.W.D. 2002); Dotzauer v. Director of Revenue, *** S.W.3d *** (Mo.App.E.D. 2004).

a. If opportunity to contact counsel comes prior to implied consent warning, must be shown that subject was not prejudiced or refusal will be deemed invalid -- Brown v. Director of Revenue, 34 S.W.3d 166 (Mo.App.W.D. 2000); Glastetter v. Director of Revenue, 37 S.W.3d 405 (Mo.App.E.D. 2001).

b. Asking for an attorney after refusing the test does not trigger the 20-minute rule -- Eckenrode v. Director of Revenue, 994 S.W.2d 583 (Mo.App.S.D. 1999). However, sequence of events must be unambiguous -- Mount v. Director of Revenue, 62 S.W.3d 597 (Mo.App.W.D. 2001).

c. Driver must specifically request to talk to an attorney to trigger 20 minute rule; subsequently agreeing to take the test does not affect the refusal -- Moody v. Director of Revenue, 14 S.W.3d 729 (Mo.App.E.D. 2000).

d. If the evidence does not reflect that either the subject affirmatively abandoned the attempts or that 20 minutes had elapsed since the subject requested to contact counsel, the refusal will be deemed invalid -- Bacandreas v. Director of Revenue, 99 S.W.3d 497 (Mo.App.E.D. 2003); Keim v. Director of Revenue, 86 S.W.3d 177 (Mo.App.E.D. 2002).

e. If the subject was not given a full 20 minutes, evidence must establish that subject abandoned attempts to contact counsel or the refusal will be deemed invalid -- Krakover v. Director of Revenue, *** S.W.3d *** (Mo.App.E.D. 2004).

7. Subject does not get to pick which statutory test to take -- Williams v. Lohman, 996 S.W.2d 127 (Mo.App.W.D. 1999). The subject can request an independent test at his own expense, pursuant to § 577.020.5, RSMo, but the officer is not required to assist the subject in obtaining such a test -- Pierce v. Director of Revenue, 51 S.W.3d 888 (Mo.App.W.D. 2001).

8. It does not have to show that subject made a “knowing” refusal -- Lyons v. Director of Revenue, 36 S.W.3d 409 (Mo.App.E.D. 2001). However, where evidence reflected that injured subject may have been irrational, court could find that subject did not refuse -- Nace v. Director of Revenue, 123 S.W.3d 252 (Mo.App.W.D. 2003).

9. Subject cannot “cure” a refusal by subsequently agreeing to take test -- Phillips v. Wilson, 66 S.W.3d 176 (Mo.App.W.D. 2002).

10. It does NOT have to be shown that the instrument was set up and proper procedures were followed before the subject can be deemed to have refused a test by merely saying “no” -- Fredrickson v. Director of Revenue, 55 S.W.3d 460 (Mo.App.W.D. 2001). Fact that subject smoked a cigarette within 15 minutes of refusing the test is irrelevant -- Fischbeck v. Director of Revenue, 91 S.W.3d 699 (Mo.App.E.D. 2002).

-- does NOT have to be shown that the officer had a Type III permit if the subject merely said “no” to the test -- Burk v. Director of Revenue, 71 S.W.3d 686 (Mo.App.S.D. 2002).

-- does NOT have to be shown that the instrument had been maintained if the subject refused the test Orr v. Director of Revenue, 54 S.W.3d 201 (Mo.App.W.D. 2001).

-- if the instrument is set up to print a “refused” ticket, do not check the box on the checklist indicating that the subject’s breath sample was taken!! -- Reece v. Director of Revenue, 61 S.W.3d 288 (Mo.App.E.D. 2001).

11. The subject may be deemed to have refused a blood test, even after submitting to a breath test -- Snow v. Director of Revenue, 935 S.W.2d 383 (Mo.App.S.D. 1996); Smock v. Director of Revenue, *** S.W.3d *** (Mo.App.S.D. 2004).

-- Implied consent warning does not have to be given a second time before requesting a second test -- Baldridge v. Director of Revenue, 82 S.W.3d 212 (Mo.App.W.D. 2002); Sweatt v. Director of Revenue, 98 S.W.3d 926 (Mo.App.S.D. 2003).

12. Where officer erroneously told subject to remove his false teeth to take test and subject refused, officer could ask subject to submit again when he learned that teeth did not have to be removed; subject’s reply that he did not want to take the test, but would if the officer wanted him to, constituted a refusal -- Zimmerman v. Director of Revenue, 72 S.W.3d 634 (Mo.App.S.D. 2002).

13. Where subject claimed he refused because he overheard officer state that instrument was not working, he was still subject to revocation as long as he was given the implied consent warning and did not tell officer he believed instrument was not working properly -- Fischbeck v. Director of Revenue, 91 S.W.3d 699 (Mo.App.E.D. 2002).

14. Evidence supported finding that subject did not knowingly refuse where subject was not fluent in English and may not have understood how to perform test -- Kisselev v. Director of Revenue, 97 S.W.3d 538 (Mo.App.S.D. 2003).

15. Evidence supported revocation of subject who did not tell officer that he did not understand his implied consent rights after a second officer read the warning in Spanish -- Gonzalez v. Director of Revenue, 107 S.W.3d 491 (Mo.App.S.D. 2003).

F. Blood draw

1. paramedic from county ambulance district who drew blood at accident scene inside the ambulance district was “at the place his place of employment” as required by § 577.029 -- Smith v. Director of Revenue, 77 S.W.3d 120 (Mo. App.W.D. 2002).

2. qualifications of blood drawer set forth in § 577.033 must be shown -- Nesbitt v. Director of Revenue, 982 S.W.2d 783 (Mo.App.E.D. 1998).

3. dispute between officer and medical technician over which arm blood was drawn from sufficient to defeat suspension -- Kearney v. Director of Revenue, 999 S.W.2d 310 (Mo.App.E.D. 1999).

4. blood drawer’s statement on current AIR reflecting he was a trained medical technician and that he drew the blood sample in strict compliance with § 577.029 is sufficient to admit blood test results -- Francis v. Director of Revenue, 85 S.W.3d 56 (Mo.App.E.D. 2002).

5. blood can be drawn pursuant to a warrant, even though the subject has otherwise refused to submit to a test pursuant to the “implied consent” law -- State v. Smith *** S.W.3d *** (Mo.App.E.D. 2003). -- this case has been transferred to the Mo. Supreme Court

6. not error to admit blood drawn pursuant to medical treatment, even though chain of custody not established -- State v. (Joseph) Moore *** S.W.3d *** (Mo.App.E.D. 2003[112/16/03]).

G. Breath test

1. 15 minute observation:

a. claims of defective observation period irrelevant where subject admitted he did not engage in proscribed conduct during that time -- Holley v. Lohman, 977 S.W.2d 310 (Mo.App.S.D. 1998).

b. claims of defective observation period irrelevant where subject did not make a proper objection to introduction of the breath test results -- Krieger v. Director of Revenue, 14 S.W.3d 697 (Mo.App.E.D. 2000).

c. new observation period not required where first test produces “mouth alcohol” reading -- Hill v. Director of Revenue, 985 S.W.2d 824 (Mo.App.W.D. 1998).

d. evidence insufficient to establish subject actually observed for 15 minutes -- Krtek v. Director of Revenue, 975 S.W.2d 468 (Mo.App.S.D. 1998).

e. evidence established that subject properly observed by arresting officer, even though testing officer did not conduct an observation period -- Hollingshead v. Director of Revenue, 36 S.W.3d 443 (Mo.App.E.D. 2001).

f. evidence that subject put mint in her mouth at some point during the arrest insufficient to prove violation of observation requirements -- Testerman v. Director of Revenue, 31 S.W.3d 473 (Mo.App.W.D. 2000).

g. fact that subject claimed to have belched during observation period irrelevant where belching not covered by regulations and subject admitted he did not do anything covered by regulations -- Daniels v. Director of Revenue, 48 S.W.3d 42 (Mo.App.S.D. 2001).

h. fact that subject claimed to have chewing tobacco in his mouth during the test irrelevant where subject did not object to admission of the test result; burden shifted to subject to prove that tobacco affected test result -- Duing v. Director of Revenue, 59 S.W.3d 537 (Mo.App.E.D. 2001).

I. fact that subject claimed to have put candy in his mouth prior to test sufficient to establish that proper observation period was not conducted by the officer and rendered test result inadmissible, even though no evidence that subject put candy in mouth within 15 minutes of test, and subject spit out candy prior to test -- Carr v. Director of Revenue, 95 S.W.3d 121 (Mo.App.W.D. 2002).

2. “substantial compliance” with regulations, even though checklist incomplete -- Guccione v. Director of Revenue, 968 S.W.2d 649 (Mo.App.E.D. 1999); Childs v. Director of Revenue, 3 S.W.3d 399 (Mo.App.E.D. 1999).

3. “Sample Control Override”

a. “override” test result admissible where evidence reflected that only consequence of using override would be to obtain a lower test result -- Bradford v. Director of Revenue, 72 S.W.3d 611 (Mo.App.E.D. 2002).

b. “override” test result admissible where subject did not raise foundational objection to test result -- Dale v. Director of Revenue, 40 S.W.3d 396 (Mo.App.E.D. 2001).

4. maintenance:

a. maintenance need not be proven without objection to test result -- Soutee v. Director of Revenue, 977 S.W.2d 313 (Mo.App.S.D. 1998); Erwin v. Director of Revenue, 9 S.W.3d 37 (Mo.App.E.D. 1999). Bare “insufficient foundation” objection does not necessitate proving up maintenance -- Farmer v. Director of Revenue, 11 S.W.3d 113 (Mo.App. S.D. 2000).

b. certificate of analysis not required under regulation of 5/4/98 -- Smith v. Director of Revenue, 13 S.W.3d 700 (Mo.App.W.D. 2000). Regulation applies retrospectively -- Harper v. Director of Revenue, 14 S.W.2d 614 (Mo.App.E.D. 1999); Wilcutt v. Director of Revenue, 18 S.W.3d 548 (Mo.App.E.D. 2000).

c. Regulations in effect at time of trial, not at time of maintenance, control; Dept. of Health can pass emergency regulations -- Blechle v. Director of Revenue, 11 S.W.3d 655 (Mo.App.E.D. 1999); Duckworth v. Director of Revenue, 11 S.W.3d 658 (Mo.App.E.D. 1999); Welker v. Director of Revenue, 11 S.W.3d 661 (Mo.App.E.D. 1999); Reker v. Director of Revenue, 11 S.W.3d 662 (Mo.App.E.D. 1999); Dumey v. Director of Revenue, 11 S.W.3d 664 (Mo.App.E.D. 1999); Halter v. Director of Revenue, 11 S.W.3d 665 (Mo.App.E.D. 1999); Goad v. Director of Revenue, 11 S.W.3d 667 (Mo.App.E.D. 1999); Waller v. Director of Revenue, 11 S.W.3d 669 (Mo.App.E.D. 1999).

d. certificate of analysis sufficient to establish that the solution was “supplied” by an approved supplier -- Kobayshi v. Director of Revenue, 22 S.W.3d 247 (Mo.App. E.D. 2000); Selix v. Director of Revenue, 985 S.W.2d 380 (Mo.App.E.D. 1999); Schulte v. Director of Revenue, 995 S.W.2d 509 (Mo.App.W.D. 1999).

e. Fill out the *&@*! maintenance reports right!! -- Endsley v. Director of Revenue, 6 S.W.3d 153 (Mo.App.W.D. 1999); Lasley v. Director of Revenue, 17 S.W.3d 174 (Mo.App.W.D. 2000). Report still admissible even though *&@*! serial number not filled out right -- Turrell v. Director of Revenue, 31 S.W.3d 655 (Mo.App.W.D. 2000).

f. actual simulator temperature not required to be recorded on report -- Testerman v. Director of Revenue, 31 S.W.3d 473 (Mo.App.W.D. 2000).

g. fact that time/date component is set wrong on BAC Verifier does not affect admissibility of test result -- Hall v. Director of Revenue, 72 S.W.3d 231 (Mo.App.E.D. 2002).

h. fact that test strips from maintenance check and copy of the type II permit were attached to maintenance report does not affect admissibility of maintenance report; report listing RepCo as supplier of solution was sufficient to establish that an approved solution was used without showing that it was the RepCo from Raleigh, NC listed in regulations -- Sheridan v. Director of Revenue, 103 S.W.3d 878 (Mo.App.E.D. 2003).

5. circuit court must take judicial notice of the DOH regulations, even without a specific request to do so -- McClellan v. Director of Revenue, 996 S.W.2d 794 (Mo.App.E.D. 1999).

6. testimony from expert witnesses that the subject’s BAC “might” have been lower than .10% when driving insufficient to defeat suspension action -- Green v. Director of Revenue, 961 S.W.2d 936 (Mo.App.E.D. 1998); Rhodes v. Director of Revenue, 994 S.W.2d 597 (Mo.App.S.D. 1999); Hamm v. Director of Revenue, 20 S.W.3d 924 (Mo.App.S.D. 2000); Meyer v. Director of Revenue, 34 S.W.3d 230 (Mo.App.E.D. 2000).

a. subject’s claim to have consumed 2-3 beers after accident insufficient to prove that he was not driving with a BAC of .10 or higher when he tested .189 -- Smith v. Director of Revenue, 8 S.W.3d 179 (Mo.App.E.D. 1999).

7. once the state establishes a prima facie case for admission of test results, burden of production shifts to the driver to present evidence which raises a “genuine issue of fact” which challenges the presumption that the test result is valid -- Verdoorn v. Director of Revenue, 119 S.W.3d 543 (Mo.banc 2003); Singleton v. Director of Revenue, 120 S.W.3d 218 (Mo.App.W.D. 2003).

-- Speculative testimony from an expert witness that a test result may be inaccurate is insufficient to rebut the test result -- Walker v. Director of Revenue, *** S.W.3d *** (Mo.App.E.D. 2003).

8. fact that software had been changed in DataMaster did not render test result inadmissible -- Coyle v. Director of Revenue, 88 S.W.3d 887 (Mo.App.W.D. 2002).

9. when DataMaster displayed a status code of “system won’t zero” officer should not have administered a second test; officer testified that instrument was not functioning properly, and DOH regulations require that an officer immediately suspend the use of an instrument that is not functioning proper -- Kennedy v. Director of Revenue, 73 S.W.3d 85 (Mo.App.S.D. 2002).

10. when DataMaster sometimes displayed readings of .004% when it should have read .000%, this did not constitute a “malfunction” since these readings were within the tolerance established by the DOH regulations -- Shewmaker v. Director of Revenue, 121 S.W.3d 294 (Mo.App.W.D. 2003); Reckner v. Director of Revenue, 121 S.W.3d 296 (Mo.App.W.D. 2003).

H. Prior offenses

1. Certified DOR records can be used to establish prior offenses in lieu of MULES records or court records -- State v. Thomas, 969 S.W.2d 354 (Mo.App.W.D. 1998).

2. Prosecutorial discretion permits charging felony murder instead of involuntary manslaughter where subject is a persistent offender -- State v. Pembleton, 978 S.W.2d 352 (Mo.App.E.D. 1998).

3. Not error for court to refuse to allow state to prove up persistent offender status after case submitted to jury -- State v. Cullen, 39 S.W.3d 899 (Mo.App.E.D. 2001).

I. “Hardship” driving privileges

1. Subject was “otherwise ineligible” for a hardship who had been revoked twice for refusing test -- Rider v. Director of Revenue, 5 S.W.3d 211 (Mo.App.S.D. 1999); Sanders v. Director of Revenue, 998 S.W.2d 804 (Mo.App.E.D. 1999).

2. Subject seeking a hardship driving privilege has burden of showing she no longer poses a threat to the public safety -- Jones v. Director of Revenue, 18 S.W.3d 538 (Mo.App.E.D. 2000).

3. Courts cannot grant hardship privileges to subjects who are ineligible under the statute -- Conrad v. Director of Revenue, 20 S.W.3d 607 (Mo.App.E.D. 2000); Sanders v. Director of Revenue, 998 S.W.2d 804 (Mo.App.E.D. 1999); Rider v. Director of Revenue, 5 S.W.3d 211 (Mo.App.S.D. 1999).

4. Writ of prohibition is authorized where court grants hardship privilege to subject who is statutorily ineligible -- State ex. rel Director of Revenue v. Mobley, 49 S.W.3d 178 (Mo.banc 2001).

II. "IMPLIED CONSENT" LAW -- new provisions -- §§ 577.020 - 577.041, RSMo

A. § 577.020, RSMo Supp. 2003.

Chemical tests for alcohol content of blood -- consent implied, when -- administered, when, how -- videotaping of chemical or field sobriety test admissible evidence.

1. Any person who operates a motor vehicle upon the public highways of this state shall be deemed to have given consent to, subject to the provisions of sections 577.020 to 577.041, 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 driving a motor vehicle while in an intoxicated or drugged condition; or

(2) If the person is under the age of twenty-one, has been stopped by a law enforcement officer, and the law enforcement officer has reasonable grounds to believe that such person was driving a motor vehicle with a blood alcohol content of two-hundredths of one percent or more by weight; or

(3) If the person is under the age of twenty-one, has been stopped by a law enforcement officer, and the law enforcement officer has reasonable grounds to believe that such person has committed a violation of the traffic laws of the state, or any political subdivision of the state, and such officer has reasonable grounds to believe, after making such stop, that such person has a blood alcohol content of two-hundredths of one percent or greater; or

(4) If the person is under the age of twenty-one, has been stopped at a sobriety checkpoint or roadblock and the law enforcement officer has reasonable grounds to believe that such person has a blood alcohol content of two-hundredths of once percent or greater;

*(5) If the person, while operating a motor vehicle, has been involved in a motor vehicle collision which resulted in a fatality or a readily apparent serious physical injury as defined in section 565.002, RSMo,^[1] and has been arrested as evidenced by the issuance of a uniform traffic ticket for the violation of any state law or county or municipal ordinance with the exception of equipment violations contained in chapter 306, RSMo, or similar provisions contained in county or municipal ordinances; or

*(6) If the person, while operating a motor vehicle, has been involved in a motor vehicle collision which resulted in a fatality. *Subdivisions 5 and 6 are new in 2001).

The test shall be administered at the direction of the arresting law enforcement officer whenever the person has been arrested or stopped for any reason.

2. The implied consent to submit to the chemical tests listed in subsection 1 of this section shall be limited to not more than two such tests arising from the same arrest, incident or charge.

* * * * * *

7. Any person given a chemical test of the person’s breath pursuant to subsection 1 of this section or a field sobriety test may be videotaped during any such test at the direction of the law enforcement officer. Any such video recording made during the chemical test pursuant to this subsection or a field sobriety test shall be admissible as evidence at either any trial of such person for either a violation of any state law or county or municipal ordinance, or any license revocation or suspension proceeding pursuant to the provisions of chapter 302, RSMo.

(Amended effective May 19, 1998 and August 28, 2001; new language in bold.)

Note: The reference to “two such tests” means two of the types of tests allowed, not merely two unsuccessful attempts to get a test result. Snow v. Director of Revenue, 935 S.W.2d 383 (Mo.App.S.D. 1996) (motorist subject to revocation for refusing blood test after three unsuccessful attempts to get a breath sample); State v. Rabe, 870 S.W.2d 453 (Mo.App.S.D. 1994) (incomplete tests do not count towards the two tests allowed by statute); Wilson v. Director of Revenue, 35 S.W.3d 923 (Mo.App.W.D. 2001); Duffy v. Director of Revenue, 966 S.W.2d 372 (Mo.App.W.D. 1998) (subjects revoked for refusing urine tests after breath tests).

Note: A portable breath test does not constitute a “test” under this section. Justice v. Director of Revenue, 890 S.W.2d 728 (Mo.App.W.D. 1995); Baker v. Director of Revenue, 945 S.W.2d 589 (Mo.App.E.D. 1997).

Note: The language of this section does not require that a motorist be operating a vehicle on a public highway at the time of arrest in order to be subject to a revocation for refusing a test. Bertram v. Director of Revenue, 930 S.W.2d 7 (Mo.App.W.D. 1996); Peeler v. Director of Revenue, 934 S.W.2d 329 (Mo.App. E.D. 1996) (both cases involved operation of a vehicle on a parking lot).

B. § 577.041, RSMo 2003.

Refusal to submit to chemical test notice, report of arresting officer revocation of license, hearing evidence, admissibility.

1. If a person under arrest, or who has been stopped pursuant to subdivision (2) or (3) of subsection 1 of section 577.020, refuses upon the request of the arresting officer to submit to any test allowed under section 577.020, then none shall be given and evidence of the refusal shall be admissible in a proceeding under section 565.024 or 565.060, RSMo, or section 577.010 or 577.012. The request of the arresting 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 his refusal to take the test may be used against him and that his license shall be immediately revoked upon his refusal to take the test. If a person when requested to submit to any test allowed under section 577.020 requests to speak to an attorney, he shall be granted twenty minutes in which to attempt to contact an attorney. If upon the completion of the twenty-minute period the person continues to refuse to submit to any test, it shall be deemed a refusal. In this event, the arresting officer shall, on behalf of the director of revenue, serve the notice of license revocation personally upon the arrested person and shall take possession of any license to operate a motor vehicle issued by this state which is held by that person. The arresting officer shall issue a temporary permit, on behalf of the director of revenue, which is valid for fifteen days and shall also give the person a notice of his right to file a petition for review to contest the license revocation.

2. The arresting officer shall make a sworn report to the director of revenue, which shall include the following:

(1) That the officer has:

(a) Reasonable grounds to believe that the arrested person was driving a motor vehicle while in an intoxicated condition; or

(b) Reasonable grounds to believe that the person stopped, being under the age of twenty-one years, was driving a motor vehicle with a blood alcohol content of two-hundredths of one percent or more by weight; or

© Reasonable grounds to believe that the person stopped, being under the age of twenty-one years, was committing a violation of the traffic laws of the state, or political subdivision of the state, and such officer has reasonable grounds to believe, after making such stop, that the person had a blood alcohol content of two-hundredths of one percent or greater;

(2) That the person refused to submit to a chemical test;

(3) Whether the officer secured the license to operate a motor vehicle of the person;

(4) Whether the officer issued a fifteen-day temporary permit;

(5) Copies of the notice of revocation, the fifteen-day temporary permit, and the notice of the right to file a petition for review, which notices and permit may be combined in one document; and

(6) Any license to operate a motor vehicle which the officer has taken into possession.

3. Upon receipt of the officer's report, the director shall revoke the license of the person refusing to take the test for a period of one year; or if the person arrested be a nonresident, his operating permit or privilege shall be revoked for one year; or if the person is a resident without a license or permit to operate a motor vehicle in this state, an order shall be issued denying the person the issuance of a license or permit for a period of one year.

4. If a person's license has been revoked because of his refusal to submit to a chemical test, he may petition for a hearing before a court of record in the county in which the arrest or stop occurred. The person may request such court to issue an order staying the revocation until such time as the petition for review can be heard. If the court, in its discretion, grants such stay, it shall enter the order upon a form prescribed by the director of revenue and shall send a copy of such order to the director. Such order shall serve as proof of the privilege to operate a motor vehicle in this state and the director shall maintain possession of the person's license to operate a motor vehicle until termination of any revocation under this section. Upon his request, the clerk of the court shall notify the prosecuting attorney of the county and the prosecutor shall appear at the hearing on behalf of the director of revenue. At the hearing the judge shall determine only:

(1) Whether or not the person was arrested;

(2) Whether or not the arresting officer had:

(a) reasonable grounds to believe that the person was driving a motor vehicle while in an intoxicated or drugged condition; or

(3) Whether or not the person refused to submit to the test.

5. If the court determines any issue not to be in the affirmative, the court shall order the director to reinstate the license or permit to drive.

* * * *

(Amended effective May 19, 1998; new language in bold.)

Note: The 30 day limit found in § 302.311, RSMo, applies to the filing of petitions for review under this section. Romans v. Director of Revenue, 783 S.W.2d 894 (Mo.banc 1990).

Note: Pursuant to the language of this section, an officer is without authority to administer test once subject has refused to take test, even if subject subsequently changes mind. Blanchard v. Director of Revenue, 844 S.W.2d 589 (Mo.App.E.D. 1993); Borgen v. Director of Revenue, 877 S.W.2d 172 (Mo.App.W.D. 1994); Eckenrode v. Director of Revenue, 994 S.W.2d 583 (Mo.App.S.D. 1999). A subject cannot “cure” a refusal by subsequently agreeing to take test. Phillips v. Wilson, 66 S.W.3d 176 (Mo.App.W.D. 2002). However, blood can be drawn pursuant to a warrant, even though the subject has otherwise refused to submit to a test pursuant to the “implied consent” law. State v. Smith *** S.W.3d *** (Mo.App.E.D. 2003)(case transferred to supreme court.)

III. "IMPLIED CONSENT" LAW -- specific issues -- §§ 577.020 - 577.041, RSMo

A. ARREST -- § 577.020.1

1. necessity of arrest (for those over 21) -- driver must be under arrest in order for the implied consent law to apply; a refusal prior to arrest will not sustain a license revocation. Collette v. Director of Revenue, 717 S.W.2d 551 (Mo.App.W.D. 1986). Merely telling a subject that she was under arrest, without any actual physical restraint of the subject, no matter however slight, or without the subject submitting to the officer’s show of authority, was insufficient to establish that she was arrested as required by statute -- Callendar v. Director of Revenue, 44 S.W.3d 866 (Mo.App.W.D. 2001). However, no further restraint necessary where subject already strapped to a back board and the officer made a "direct show of authority" --Saladino v. Director of Revenue, 88 S.W.3d 64 (Mo.App.W.D. 2002).

a. Probable cause for, or the lawfulness of, the stop is not an issue; the exclusionary rule does not apply in civil cases -- Sullins v. Director of Revenue, 893 S.W.2d 848 (Mo.App.S.D. 1995); Green v. Director of Revenue, 745 S.W.2d 818 (Mo.App.W.D. 1988).

b. No particular words are necessary to effectuate an arrest, so long as an officer has taken control of the person's movements -- State v. Ikerman, 698 S.W.2d 902 (Mo.App.E.D. 1985).

2. arrest for an offense arising out of acts where the officer has reasonable grounds to believe involved DWI; does not have to be arrested for DWI -- Westhoelter v. Director of Revenue, 783 S.W.2d 150 (Mo.App.E.D. 1990)

a. "private property" arrests -- operation upon public road at the time of arrest not required for implied consent law to apply -- Bertram v. Director of Revenue, 930 S.W.2d 7 (Mo.App.W.D. 1996); Peeler v. Director of Revenue, 934 S.W.2d 329 (Mo.App. E.D. 1996).

B. REASONABLE GROUNDS

1. "Reasonable grounds" is the same as "probable cause"-- Wilcox v. Director of Revenue, 842 S.W.2d 240 (Mo.App.W.D. 1992); Tuggle v. Director of Revenue, 727 S.W.2d 168 (Mo.App.W.D. 1987); Myers v. Director of Revenue, 9 S.W.3d 25 (Mo.App.E.D. 2000).

2. State merely has to show there were reasonable grounds to believe the subject was driving while intoxicated; State does not have to show that subject actually was driving (Hinnah v. Director of Revenue, 77 S.W.3d 616 [Mo.banc 2002]; Burleson v. Director of Revenue, 92 S.W.3d 218 [Mo.App.S.D. 2002)]), that subject actually was intoxicated (Soest v. Director of Revenue, 62 S.W.3d 619 [Mo.App.E.D. 2001]), or that subject actually was intoxicated when driving (Howard v. McNeill, 716 S.W.2d 912 [Mo.App.E.D. 1986]).

a. “Reasonable grounds” must exist at time of arrest; cannot be either based upon, or refuted by, information obtained after the arrest. Howard v. McNeill, 716 S.W.2d 912 (Mo.App.E.D. 1986). However, an officer can develop reasonable grounds to arrest for DWI after the subject has been arrested on a different charge --Dixon v. Director of Revenue, 118 S.W.3d 302 (Mo.App.S.D. 2003).

b. arresting officer does not need "reasonable grounds" prior to initial stop; indicia of intoxication observed after stop supports a reasonable belief that driver was driving vehicle while intoxicated. Gelsheimer v. Director of Revenue, 845 S.W.2d 107 (Mo.App.W.D. 1993); Stark v. Director of Revenue, 774 S.W.2d 842 (Mo.App.W.D. 1989).

2. Proof that the person was driving may be direct or circumstantial -- Wilcox v. Director of Revenue, 842 S.W.2d 240 (Mo.App.W.D. 1992); Stenzel v. Director of Revenue, 536 S.W.2d 163 (Mo.App.E.D. 1976).

3. Reasonable grounds to believe that the person was driving, even where subject found on foot and denies driving -- Boyd v. Director of Revenue, 71 S.W.3d 262 (Mo.App.S.D. 2002); Kinsman v. Director of Revenue, 58 S.W.3d 27 (Mo.App.W.D. 2001).

4. Extra-judicial admission of driving is admissible to prove officer had reasonable grounds; the corpus delicti rule does not apply in civil proceedings. Tuggle v. Director of Revenue, 727 S.W.2d 168 (Mo.App. 1987); Tolen v. Dept. of Revenue, 564 S.W.2d 601 (Mo.App. 1978); Webb v. Director of Revenue, 896 S.W.2d 517 (Mo.App.W.D. 1995).

C. WHAT CONSTITUTES A REFUSAL

1. A volitional failure to do what is necessary for the test to be performed of the test is a refusal -- Spradling v. Deimeke, 528 S.W.2d 759 (Mo. 1975).

a. Failing to blow properly into instrument is a refusal -- Sutton v. Director of Revenue, 20 S.W.3d 918 (Mo.App.S.D. 2000); Stewart v. McNeill, 703 S.W.2d 97 (Mo.App.W.D. 1985); Askins v. James, 642 S.W.2d 383 (Mo.App. 1982); Benson v. Director of Revenue, 937 S.W.2d 768 (Mo.App.W.D. 1997).

-- Failure to produce a complete sample can constitute a refusal, even where digital readout reflects a BAC over the legal limit -- Freeman v. Director of Revenue, 113 S.W.3d 307 (Mo.App.S.D. 2003). However, evidence merely reflecting that subject stopped blowing before a complete sample was obtained is insufficient to establish that subject refused, absent a showing that the subject refused to blow as instructed, etc. -- Yarsulik v. Director of Revenue, 118 S.W.3d 279 (Mo.App.W.D. 2003).

Note: Trial court could find that subject did not refuse the test where subject had jaw wired shut and produced a reading of .10 on digital readout, even though he failed to produce a complete breath sample -- Harder v. Director of Revenue, 7 S.W.3d 1 (Mo.App.E.D. 1999).

b. Consent to take the test conditioned on certain events/conditions may be a refusal. Spradling v. Deimeke, 528 S.W.2d 759 (Mo. 1975); Rains v. King, 695 S.W.2d 523 (Mo.App.S.D. 1985); Bach v. Director of Revenue, 764 S.W.2d 742 (Mo.App.W.D. 1989). A qualified or conditional consent constitutes a refusal, unless the condition is to talk to a lawyer as permitted by the “20 minute” rule; asking to speak to a lawyer but then refusing to attempt to contact one constitutes a refusal -- Roberts v. Wilson, 97 S.W.3d 487 (Mo.App.W.D. 2002). A subject’s reply that he did not want to take the test, but would if the officer wanted him to, constituted a conditional consent and therefore a refusal -- Zimmerman v. Director of Revenue, 72 S.W.3d 634 (Mo.App.S.D. 2002).

Note: if the officer agrees to a condition raised by the subject but then reneges, the revocation will not stand -- Lowery v. Spradling, 554 S.W.2d 555 (Mo.App. 1977) (officer agreed to wait for subject’s employer, but then insisted on test before he arrived). Allowing subject 20 minutes to arrange for a blood test, then not giving the breath test when subject subsequently asked to do it, does not constitute a refusal. Thomas v. Schaffner, 448 S.W.2d 319 (Mo.App.W.D. 1969).

Note: refusing to agree to pay for blood test does not constitute a refusal of test -- Sparling v. Director of Revenue, 52 S.W.3d 11 (Mo.App.E.D. 2001). Refusing to sign hospital’s release form does not constitute a refusal of test -- Wofford v. Director of Revenue, 868 S.W.2d 142 (Mo.App.E.D. 1993).

c. Driver does not have right to choose between tests -- Kiso v. King, 691 S.W.2d 374 (Mo.App. 1985); McGuire v. Jackson County Pros. Atty., 548 S.W.2d 272 (Mo.App. 1977); State v. Brown, 804 S.W.2d 396 (Mo.App. 1991); Williams v. Lohman, 996 S.W.2d 127 (Mo.App.W.D. 1999).

d. Driver’s claim to have been too drunk/drugged to knowingly refuse does not merit overturning of refusal revocation. Turner v. Director of Revenue, 829 S.W.2d 671 (Mo.App.W.D. 1992).

e. Refusal does not have to be "knowing"; inability to remember events surrounding refusal is irrelevant. Berry v. Director of Revenue, 885 S.W.2d 326 (Mo.banc. 1994); Cartwright v. Director of Revenue, 824 S.W.2d 38 (Mo.App. 1991). However, where evidence reflected that injured subject may have been irrational, court could find that subject did not refuse -- Nace v. Director of Revenue, 123 S.W.3d 252 (Mo.App.W.D. 2003).

f. A subject cannot “cure” a refusal by subsequently agreeing to take test. Phillips v. Wilson, 66 S.W.3d 176 (Mo.App.W.D. 2002).

g. Subject could not complain about delay in being offered a breath test where the delay was caused by his escape from custody -- Staton v. Director of Revenue, 14 S.W.3d 282 (Mo.App.W.D. 2000).

h. Subject could not complain about not understanding his rights where he did not tell officer he did not understand -- Spradling v. Deimeke, 528 S.W.2d 759 (Mo. 1975); Fischbeck v. Director of Revenue, 91 S.W.3d 699 (Mo.App.E.D. 2002); Gonzalez v. Director of Revenue, 107 S.W.3d 491 (Mo.App.S.D. 2003). Subject could not complain about not understanding his rights where he claimed that he only had to take one test, but officer correctly explained that he had to submit to second test -- Baldridge v. Director of Revenue, 82 S.W.3d 212 (Mo.App.W.D. 2002). However, court could find that subject did not understand English good enough to understand how to perform the test -- Kisselev v. Director of Revenue, 97 S.W.3d 538 (Mo.App.S.D. 2003).

i. The subject may be deemed to have refused a blood test, even after submitting to a breath test -- Snow v. Director of Revenue, 935 S.W.2d 383 (Mo.App.S.D. 1996); Smock v. Director of Revenue, *** S.W.3d *** (Mo.App.S.D. 2004).

j. Officer not required to read implied consent a second time when asking subject to submit to second test -- Sweatt v. Director of Revenue, 98 S.W.3d 026 (Mo.App.S.D. 2003).

Note: attempting to give subject information beyond the scope of the implied consent law may be deemed to prejudice the subject’s decision-making process and void the refusal revocation -- Kidd v. Wilson, 50 S.W.3d 858 (Mo.App.W.D. 2002).

2. Right to counsel: A subject will not be deemed to have refused if not given 20 minutes to attempt to contact an attorney after being given the implied consent warning set forth in § 577.041.1. McMaster v. Lohman, 941 S.W.2d 813 (Mo.App. 1997); Albrecht v. Director of Revenue, 833 S.W.2d 40 (Mo.App. 1992).

a. the statutory right to contact counsel only triggered by a specific request to speak with a lawyer -- Green v. Director of Revenue, 849 S.W.2d 658 (Mo.App. 1993); State v. Foster, 959 S.W.2d 143 (Mo.App. 1998).

b. full 20 minutes is not required if attempts are abandoned -- Schmidt v. Director of Revenue, 48 S.W.3d 688 (Mo.App.W.D. 2001) Witeka v. Director of Revenue, 913 S.W.2d 438 (Mo.App. 1995); Wall v. Holman, 902 S.W.2d 329 (Mo.App. 1995). However, evidence must clearly reflect that subject unequivocally abanonded further attempts to contact counsel -- Krakover v. Director of Revenue, *** S.W.3d *** (Mo.App.E.D. 2004).

c. Officer remaining nearby during call does not violate statutory right to counsel. Clardy v. Director of Revenue, 896 S.W.2d 53 (Mo.App. 1995).

d. If opportunity to contact counsel given prior to implied consent warning, must be shown that subject was not prejudiced or refusal will be deemed invalid -- Brown v. Director of Revenue, 34 S.W.3d 166 (Mo.App.W.D. 2000); Glastetter v. Director of Revenue, 37 S.W.3d 405 (Mo.App.E.D. 2001).

e. Although a subject does not have a right to have counsel present for the test, subject cannot be isolated from counsel who is otherwise at the police station -- McMurray v. Director of Revenue, 800 S.W.2d 820 (Mo.App.E.D. 1990).

f. Subject who asked for counsel, but then spent 20 minutes sitting in bathroom, was deemed to have had a reasonable opportunity to contact counsel -- Christensen v. Director of Revenue, *** S.W.3d *** (Mo.App.S.D. 2004).

g. If subject asks for an attorney, but then agrees to take the test, it is not necessary to wait out the remainder of the 20-miute period -- Crabtree v. Director of Revenue, 65 S.W.3d 557 (Mo.App.W.D. 2002); Dotzauer v. Director of Revenue, *** S.W.3d *** (Mo.App.E.D. 2004).

3. Implied consent warning: A subject may be deemed to not have refused a test if not given a proper implied consent warning. However, if the officer fails to use the exact words of the statute, the issue is whether the warning given was so deficient as to actually prejudice the subject’s decision-making process. Teson v. Director of Revenue, 937 S.W.2d 195 (Mo.banc 1996) (warning that license “shall” be revoked, rather than “shall immediately” be revoked, did not prejudice subject).

4. consent not withdrawn if subject is unconscious/dead (§ 577.033), but subject must be under arrest -- State v. Copeland, 689 S.W.2d 327 (Mo.App.S.D. 1984).

5. collecting samples without consent or warrant -- State v. Trumble, 844 S.W.2d 22 (Mo.App.W.D. 1992); State v. Todd, 935 S.W.2d 55 (Mo.App.E.D. 1996).

6. if subject unequivocally refuses, but then consents, no test should be given under § 577.041.1 -- Blanchard v. Director of Revenue, 844 S.W.2d 589 (Mo.App.E.D. 1993); Borgen v. Director of Revenue, 877 S.W.2d 172 (Mo.App.W.D. 1994). However, blood can be drawn pursuant to a warrant, even though the subject has otherwise refused to submit to a test pursuant to the “implied consent” law -- State v. Smith *** S.W.3d *** (Mo.App.E.D. 2003).

D. Refusal proceedings under § 577.041 are separate from any criminal proceedings arising from the same incident.

1. A driver may still be revoked for refusal even though s/he is acquitted of driving while intoxicated -- Tolen v. Missouri Department of Revenue, 564 S.W.2d 601 (Mo.App.W.D. 1978).

2. A finding of no probable cause in the criminal case of driving while intoxicated is not res judicata in the separate refusal case -- Borchelt v. Director of Revenue, 806 S.W.2d 95 (Mo.App.E.D. 1991).

3. State is not estopped from establishing a refusal in criminal case, even though prosecutor confessed the civil refusal proceeding -- State v. Mayfield, 970 S.W.2d 917 (Mo.App.S.D. 1998).

4. State is not estopped from establishing a refusal in criminal case, even though the civil refusal case was lost on the merits -- State v. Clarkston, 963 S.W.2d 705 (Mo.App.W.D. 1998).

IV. “IMPLIED CONSENT” FOR COMMERCIAL MOTOR VEHICLES

A. § 302.745 provides that any person who operates a commercial motor vehicle within the state of Missouri is deemed to have given his/her consent to a test or tests of his/her breath, blood, saliva or urine to determine BAC or the presence of controlled substances.

1. The test(s) may be requested by any law enforcement officer who has reason to believe that the driver was operating a commercial motor vehicle while having any amount of alcohol or controlled substances in his/her system. The officer does not have to have reason to believe the driver was driving while intoxicated.

2. No more than two tests may be required from any one incident.

B. Section 302.750 provides that if an officer has requested a test and the driver refuses, that none will be given and that the officer will file a sworn report with the Director.

C. Warning:

1. Refusal will result in the driver being immediately placed out-of-service for a period of 24 hours.

2. Refusal will result in a disqualification of commercial driving privileges for a period of one year for a first offense, or ten years for a second or subsequent offense.

3. Evidence of the refusal will be admissible against the driver.

D. Petition for Review

1. Must be filed in the county where the request for test was made.

2. The court has only two issues to determine:

a. Whether the officer had reasonable grounds to believe the person was driving a commercial motor vehicle with any amount of alcohol in his/her system; and

b. whether s/he refused.

3. The driver does not have to be under arrest to be requested to submit to a test.

V. JUDICIAL REVIEW OF LICENSE REVOCATION -- § 577.041.4

A. The Petition for Review must be filed within 30 days of the date on which the Director mailed notice of loss of driving privileges -- Murray v. Wagner, 883 S.W.2d 98 (Mo.App.W.D. 1994); Turpin v. Director of Revenue, 876 S.W.2d 54 (Mo.App.W.D. 1994); Ellrick v. Director of Revenue, 787 S.W.2d 908 (Mo.App. 1990); Romans v. Director of Revenue, 783 S.W.2d 894, 896 (Mo.banc 1990).

1. When service of the notice is by mail, Rule 44 does not allow three extra days’ “mail time” for filing the petition -- Benbrook v. Director of Revenue, 873 S.W.2d 688 (Mo.App.E.D. 1994); Ramey v. Director of Revenue, 865 S.W.2d 442 (Mo.App.E.D. 1993); Welch v. Director of Revenue, 859 S.W.2d 230 (Mo.App.S.D. 1993).

2. A prosecutor’s confession of judgment will not vest the court with jurisdiction when a driver untimely files a petition for review of license revocation -- Yanuzzi v. Director of Revenue, 14 S.W.2d 618 (Mo.App.E.D. 1999); Allen v. Director of Revenue, 4 S.W.2d 593 (Mo.App.E.D. 1999); Bauer v. Director of Revenue, 875 S.W.2d 636 (Mo.App.E.D. 1994); Evans v. Director of Revenue, 871 S.W.2d 90 (Mo.App.E.D. 1994).

3. Subject filing a petition for review has burden of showing the petition was timely filed -- McInerney v. Director of Revenue, 12 S.W.3d 403 (Mo.App.E.D. 2000).

B. A person seeking review of the revocation must file a Petition for Review in the county of arrest; if the petition is filed in the wrong court, that court must transfer it to the proper court -- State ex rel. Director of Revenue v. Gaertner, 32 S.W.3d 564 (Mo.banc 2000). However, the parties can agree to a change of venue to a county which would not have originally had jurisdiction. Woodard v. Director of Revenue, 876 S.W.2d 810 (Mo.App.S.D. 1994).

C. Naming the Director is no longer required for a court to have subject matter jurisdiction over a refusal case. The petition only needs to name either the Director of Revenue or Department of Revenue as a party or treat one or the other as a party in the body of the petition. The petition also must make obvious that the petitioner seeks review of a driver's license or registration suspension or revocation -- Hohlt v. Director of Revenue, 893 S.W.2d 834 (Mo.banc 1995); Jackson v. Director of Revenue, 893 S.W.2d 831 (Mo.banc 1995). The Director should still be served with any such petitions.

D. The burden is on the state to go forward with the evidence to support the allegation that the driver refused the test -- Delaney v. Missouri Department of Revenue, 657 S.W.2d 354 (Mo.App.S.D. 1983); Askins v. James, 642 S.W.2d 383 (Mo.App. 1982). But see, Kinzenbaw v. Director of Revenue, 62 S.W.3d 49 (Mo.banc 2001).

1. A.I.R. can established a prima facie case for a refusal revocation; subject must present evidence to rebut Director’s case -- Hawkins v. Director of Revenue, 7 S.W.3d 549 (Mo.App.E.D. 1999).

E. At the hearing the court may determine only:

1. For those 21 or over:

a. Whether or not the person was arrested;

b. Whether or not the arresting officer had reasonable grounds to believe that the person was driving while intoxicated; and

c. Whether or not the person refused to submit to the test.

§ 577.041.4.

-- Berry v. Director of Revenue, 885 S.W.2d 326 (Mo.banc. 1994); Gelsheimer v. Director of Revenue, 845 S.W.2d 107 (Mo.App. 1993).

2. For those under 21:

a. Whether the person was under 21;

b. Whether the officer had reasonable grounds to believe that the person stopped was driving a motor vehicle with a blood alcohol content of two-hundredths of one percent or more by weight; or

Reasonable grounds to believe that the person stopped, being under the age of twenty-one years, was committing a violation of the traffic laws of the state, or political subdivision of the state, and such officer has reasonable grounds to believe, after making such stop, that the person had a blood alcohol content of two-hundredths of one percent or greater; and

c. Whether or not the person refused to submit to the test.

Note: DOR records reflecting subject’s date of birth are competent evidence to establish that the subject is under 21 -- Director of Revenue v. Christman, 968 S.W.2d 737 (Mo.App.E.D. 1998).

F. Generally, the foundational elements for admitting breath test results do not have to be proven up where the subject refuses testing. Burk v. Director of Revenue, 71 S.W.3d 686 (Mo.App.S.D. 2002); Fredrickson v. Director of Revenue, 55 S.W.3d 460 (Mo.App.W.D. 2001); Turpin v. King, 693 S.W.2d 895 (Mo.App.S.D. 1985); Chapman v. McNeill, 740 S.W.2d 701 (Mo.App.S.D. 1987). However, where the subject attempts to blow, the foundational elements may have to be proven, upon a proper and timely objection to the admission of the test "results". Benson v. Director of Revenue, 937 S.W.2d 768 (Mo.App.W.D. 1997).

G. If the driver does not obtain a stay order from the trial court, the revocation will not be stayed by Department of Revenue. The driver will not have his drivers license returned even after a stay order is issued but must use the stay order as his authority to drive. See, § 577.041.4.

1. Subject does not get credit for time served under “points” revocation against a “refusal” revocation arising out of the same arrest -- Greenwood v. Director of Revenue, 5 S.W.3d 604 (Mo.App.E.D. 1999).

H. If notice is not served by the arresting officer, notice will be mailed by the Director. Notice is complete once the Director mails notice to the driver's last address according to the Department's records and, if different, the address the officer’s report. The arresting officer has no affirmative duty to obtain the driver's current address -- Tabaka v. Director of Revenue, 876 S.W.2d 816 (Mo.App.S.D. 1994); Filla v. Director of Revenue, 873 S.W.2d 325 (Mo.App.E.D. 1994).

I. The hearing on the petition for review SHOULD BE DONE ON THE RECORD!! -- Hardin v. Director of Revenue, 991 S.W.2d 160 (Mo.App.S.D. 1999).

VI. MISCELLANEOUS CASE LAW

A. § 302.312, RSMo 2000 -- The 1996 amendment to this section permits the admission of certified Revenue records in both civil and criminal proceedings. Mills v. Director of Revenue, 964 S.W.2d 873 (Mo.App.E.D. 1998); State v. Thomas, 969 S.W.2d 354 (Mo.App. W.D. 1998); Crimmins v. Director of Revenue, 969 S.W.2d 364 (Mo.App.S.D. 1998); Riggin v. Director of Revenue, 25 S.W.3d 695 (Mo.App.S.D. 2000).

1. Records admitted under § 302.312 do not have to be served on opposing counsel seven days before trial -- Russell v. Director of Revenue, 35 S.W.3d 507 (Mo.App.E.D. 2001).

2. Double hearsay: Portions of a police report, based on notes provided by another officer, constituted inadmissible double hearsay where the notes were destroyed and the other officer could not recall the facts. Wellner v. Director of Revenue, 949 S.W.2d 683 (Mo.App.W.D. 1997).

3. Proper objection must be raised to exclude double hearsay from a police report. Helton v. Director of Revenue, 944 S.W.2d 306 (Mo.App.E.D. 1997).

4. Certified copy of AIR insufficient to support license revocation where report was ambiguous and internally inconsistent -- Jarrell v. Director of Revenue, 41 S.W.3d 42 (Mo.App.S.D. 2001).

5. Illegible copy of AIR insufficient to support license revocation -- Wright v. Director of Revenue, 50 S.W.3d 344 (Mo.App.S.D. 2001).

a. Partially illegible copy of record of conviction could be compared to form in S.Ct. Rules to determine content of record -- Stellwagon v. Director of Revenue, 91 S.W.3d 113 (Mo.banc 2002).

6. “Right to confrontation” not a valid objection to admission of certified AIR -- Krieg v. Director of Revenue, 39 S.W.3d 574 (Mo.App.E.D. 2001).

7. Records reflecting out-of-state convictions admissible when certified pursuant to § 302.312 -- Hobbs v. Director of Revenue, 51 S.W.3d 874 (Mo.App.E.D. 2001).

B. “Blood alcohol curve”

1. expert’s testimony that subject’s BAC may have been below .10% when driving insufficient to rebut prima facie case established by test result -- Green v. Director of Revenue, 961 S.W.2d 936 (Mo.App. E.D. 1998); Rhodes v. Director of Revenue, 994 S.W.2d 597 (Mo.App.S.D. 1999); Hamm v. Director of Revenue, 20 S.W.3d 924 (Mo.App.S.D. 2000); Meyer v. Director of Revenue, 34 S.W.3d 230 (Mo.App.E.D. 1998).

2. expert’s testimony as to his calculations of subject’s BAC, based on information provided by subject as to what he had to drink and when, was insufficient to establish subject’s BAC was below .10 when driving; expert’s calculations were inconsistent with the undisputed breath test result -- Rhodes v. Director of Revenue, 994 S.W.2d 597 (Mo.App.S.D. 1999).

3. subject, whose BAC test .189%, failed to rebut director’s prima facie case by showing that he drank two to three beers after the accident -- Smith v. Director of Revenue, 8 S.W.3d 179 (Mo.App.E.D. 1999).

4. evidence that subject’s blood alcohol level would have been less than her breath alcohol level sufficient to rebut director’s prima facie case -- Booth v. Director of Revenue, 34 S.W.3d 221 (Mo.App.E.D. 2000).

5. once the state establishes a prima facie case for admission of test results, burden of production shifts to the driver to present evidence which raises a “genuine issue of fact” which challenges the presumption that the test result is valid -- Verdoorn v. Director of Revenue, 119 S.W.3d 543 (Mo.banc 2003); Singleton v. Director of Revenue, 120 S.W.3d 218 (Mo.App.W.D. 2003).

C. Radio dispatches are not inadmissible hearsay when used to explain officer's actions -- State v. Hill, 812 S.W.2d 204 (Mo.App. 1991); State v. Bellah, 603 S.W.2d 707 (Mo.App. 1980); State v. Calmese, 657 S.W.2d 662 (Mo.App. 1983).

D. Court has no “equitable” authority to grant an expungement beyond that which is granted by statute -- State v. Wilson, 55 S.W.3d 851 (Mo.App.W.D. 2001); Ford v. Director of Revenue, 11 S.W.3d 106 (Mo.App.S.D. 2000); McNally v. St. Louis Co. Police Dept., 17 S.W.3d 614 (Mo.App.E.D. 2000); Klenke v. Director of Revenue, 29 S.W.3d 391 (Mo.App.E.D. 2000).

E. Revocation imposed on a driving privilege as of Director’s receipt of the conviction, not as of the date of the conviction -- Jennings v. Director of Revenue, 986 S.W.2d 513 (Mo.App.E.D. 1999).

F. Doctrine of laches does not apply to prevent Director from imposing a license denial when there is a delay in his receipt of the conviction -- Jennings v. Director of Revenue, 9 S.W.3d 699 (Mo.App.S.D. 1999).

G. Court has no discretion but to impose revocation if Director proves that subject has accumulated requisite number of points -- Justis v. Wilson, 18 S.W.3d 606 (Mo.App.W.D. 2000).

H. Petitions challenging actions of director must be filed in Cole County if not filed pursuant to a statute providing otherwise -- Robinson v. Director of Revenue, 32 S.W.3d 148 (Mo.App.S.D. 2000).

I. Driver bears initial burden of persuasion that (s)he is entitled to a license; burden then shifts to director to prove that license action is proper -- Kinzenbaw v. Director of Revenue, 62 S.W.3d 49 (Mo.banc 2001).

J. Double Jeopardy: Plea to municipal DWI charge precluded prosecution on state charges for assault 2nd -- State v. Steck, 68 S.W.3d 625 (Mo.App.S.D. 2002). Subject cannot be convicted of both DWI and assault 2nd for same incident -- State v. Emery, 95 S.W.3d 98 (Mo.banc 2003); Rost v. State, 921 S.W.2d 629 (Mo.App.S.D. 1996).

K. Subject convicted of four counts of assault 2nd arising from one accident subject to “10-year” license denial under § 302.060(9), RSMo 2000 -- Clare v. Director of Revenue, 64 S.W.3d 877 (Mo.App.E.D. 2002). However, a subject convicted of five counts of assault 2nd arising from one accident was not subject to “10-year” license denial under § 302.060(9) where the court rendered just one record of conviction on all counts -- Harper v. Director of Revenue, 118 S.W.3d 195 (Mo.App.W.D. 2003).

L. HGN: Abuse of discretion for court to allow officer to testify that, in his experience, everyone who scored 6/6 on HGN had a BAC of .10 or higher -- State v. Rose, 86 S.W.3d 90 (Mo.App.W.D. 2002).

VII. ERRORS ON AIRS

Note: Be sure that the local prosecuting attorney & the DOR get identical copies of the A.I.R.!!

1. It is necessary for the “chemical test refusal” box to be checked on the A.I.R. or the revocation for refusing the test will fail -- Hughson v. Director of Revenue, 52 S.W.3d 586 (Mo.App.W.D. 2001).

2. It is necessary for the A.I.R. to be notarized; otherwise, the Director of Revenue lacks jurisdiction to impose the license revocation -- Allen v. Director of Revenue, 59 S.W.3d 636 (Mo.App.W.D. 2001). However, the notary does not have to administer an oath to the officer -- Cessor v. Director of Revenue, 71 S.W.3d 217 (Mo.App.W.D. 2002).

3. Checking box 6 on the DataMaster checklist contained on the AIR presented the circuit court with contradictory evidence as to whether or not the subject refused the test -- Reece v. Director of Revenue, 61 S.W.3d 288 (Mo.App.E.D. 2001); Dixon v. Director of Revenue, 118 S.W.3d 302 (Mo.App.S.D. 2003).

4. If the subject does not ask for an attorney until after refusing the test, do NOT write “yes” in the box on p. 3 of the A.I.R. which asks “Did subject request attorney prior to test(s)?” -- Mount v. Director of Revenue, 62 S.W.3d 597 (Mo.App.W.D. 2001).

5. Certified copy of AIR insufficient to support license revocation where report was ambiguous and internally inconsistent -- Jarrell v. Director of Revenue, 41 S.W.3d 42 (Mo.App.S.D. 2001).

6. Illegible copy of AIR insufficient to support license revocation -- Wright v. Director of Revenue, 50 S.W.3d 344 (Mo.App.S.D. 2001).

7. Report which merely stated that subject stopped blowing before a complete sample was obtained is insufficient to establish that subject refused, absent a showing that the subject refused to blow as instructed, etc. -- Yarsulik v. Director of Revenue, 118 S.W.3d 279 (Mo.App.W.D. 2003).

SAMPLE QUESTIONS - § 577.041, RSMo.

1. MAINTENANCE OFFICER^[2]

1. Request the court take judicial notice of the Regulations of the Mo. Dept. of Health -- 19 CSR 25-30.011 through 20-30.060 (as amended 5/4/98)

2. State your name/ occupation

3. How long have you held that position?

4. Do you hold a Type II permit from the Mo. Dept. of Health?

5. Was the permit in effect on _________________ (date of maintenance).

6. What machines does that permit allow you to do maintenance checks on?

7. On _______________, did you perform any maintenance checks on any breath-testing machines?

8. On what machine?

9. Where is it located?

10. What is the serial number?

11. Did you use a checklist as part of your maintenance check?

12. Is this the report? Please identify it. (Mark it) (EXHIBIT)

13. Did you complete the steps on the checklist in the order they appear?

14. Did you fill out the information on the checklist at or near the time of the check? a). Who supplied the simulator solution?

b). Was it a .10/.04 solution?

15. What did your maintenance check of this machine reveal?

16. Was it operating within the prescribed tolerances of the Dept. of Health?

2. ARRESTING OFFICER

1. State your name/occupation.

2. How long have you been employed as a police officer?

3. Were you working on ____________?

4. At approximately _________ on ________, did you happen to observe a _________ vehicle/truck/motorcycle?

5. What drew your attention to it?

7. Where was this vehicle?

8. Why did you stop this vehicle?^[3]

9. Did this stop occur in ______________ county?

10. Who was driving the vehicle?

11. Is that person you observed driving the vehicle present here today in court? Did he hand you his license?

12. Could you please point that person out? (Your honor, could you please let the record reflect that the witness has identified ________________, the petitioner in this case.)

13. Did you ask the petitioner to step out of the vehicle? What did you observe about his walk? Was he unsteady on his feet?

14. What did you observe about him?

15. Did you detect any odor about him?

16. Did you speak with him?

17. Would you relate that conversation?^[4]

18. Did you ask him any questions? Did he admit to anything?

19. What was the state of ___________'s eyes? Bloodshot? Red? Teary?

20. What was the state of ___________'s clothing. Disheveled? Sloppy? Wet?

21. Did ____________ say anything?

22. Did he say whether:

(1) he had been drinking _____________________

(2) when he was drinking _____________________

(3) where he had been drinking _______________

(4) how much he had been drinking_____________

(5) whether he had been driving the vehicle__________

23. What did you observe about his speech?

24. Did you ask _____________ to perform any field sobriety tests?

25. And what tests were those?

(1) ABC's ____________________________________

(2) walk/turn ________________________________

(3) gaze nystagmus ______________________(min. 8 hrs training)

(4) counting _________________________________

(5) one-leg stand ____________________________

(6) PBT ______________________________________

(7) other ____________________________________

Please describe ______________'s performance of those tests.

26. In your experience as a police officer, have you come in contact with people who were intoxicated?

27. In your social experiences, have you come in contact with people who were intoxicated?

28. Have you received any training in the identification of intoxicated persons?

29. Based on those observations, did you form an opinion as to whether or not __________ was intoxicated.

30. Did you then arrest him?

31. State or muni charge?

32. Where did you take ______________ after his arrest?

33. Why did you take him there?

34. When you took ___________ to ________________, did you request that he take a breath/blood/urine test?

35. Did you tell him why you were requesting him to take the test?

36. Did you inform him of his rights under the Missouri Implied Consent Law?^[5],^[6]

37. Did he agree to take the test? (If “no”, what did the subject actually say?)

3. TESTING OFFICER (If different and/or if subject attempted the test)

1. State your name/occupation.

2. How long have you held that position?

3. Have you had any special training in giving of breath analysis tests?

4. Did you receive a permit that allows you to operate such machines? Type?

5. Was that permit in effect on _____________?

6. What machines does it authorize you to operate.

7. On ____________, did you administer a breath analysis test to the petitioner?

8. Did he take the test?

9. Did you observe the petitioner for at least 15 minutes before administering the breath test to the petitioner?

10. During this time you observed him, did he consume anything at all?

11. Did he vomit? Did he smoke?

12. Did he put any material of any type in his mouth? Did he take anything out of his mouth?

13. What machine did you use to administer the test.

14. Did you use the required check list when you administered the breath test to the petitioner?

15. Does this check list conform to the way you were trained as a Type III operator.

16. Do you have the check list with you. (Mark it) (EXHIBIT)

17. I hand you what has been marked as Respondent's Exhibit No. _______, and ask you if it is headed "Operational Check List"? Can you identify it.

18. There is a series of steps on the checklist, did you complete each step on the checklist before going on to the next step?

19. Did you enter this information on the check list at/or near the time the test was administered to the petitioner?

20. Was there any indication of anything at all that would indicate that the machine was not functioning properly?

21. Did you instruct the petitioner as to how to blow into the machine?

22. Did you observe the petitioner blow into the machine?

23. What did the petitioner do?

24. Did the machine otherwise appear to function normally?

*this line of questioning will need to be tailored to fit the particular facts; i.e., subject agreed to test but blew intermittently, stuck tongue in mouthpiece, did not seal lips around mouthpiece, etc.

(OFFER ALL EXHIBITS AT THIS TIME)

^[1]§ 565.002(6): “...physical injury that creates a substantial risk of death or that causes serious disfigurement or protracted loss or impairment of the function of any part of the body.”

^[2] If the subject simply said “no” to the test, it is not necessary to prove maintenance under the case law. If the subject agreed to the test but did not provide an adequate sample, etc., maintenance should be proved up.

^[3] Since this is a civil case, it does not have to be shown that the stop was lawful, since the exclusionary rule does not apply. Riche v. Director of Revenue, 987 S.W.2d 331 (Mo.banc 1999)

^[4] Since this is a civil case, the corpus delicti rule does not apply. Tuggle v. Director of Revenue, 727 S.W.2d 168, 169 (Mo.App. 1987); Webb v. Director of Revenue, 896 S.W.2d 517, 518 (Mo.App. 1995).

^[5] The form containing the actual “implied consent” warning should be admitted, or the witness should otherwise testify to the actual wording used.

^[6] If the subject requested to speak to a lawyer after being given the implied consent warning, it must be shown that the subject was either given a full 20 minutes after the warning to contact a lawyer, or that the subject affirmatively abandoned his attempts to contact a lawyer before the 20 minutes expired.