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September 1, 1993


APPEAL FROM THE CIRCUIT COURT OF OREGON COUNTY. Honorable William R. Hass, Associate Circuit Judge

Montgomery, Parrish, Shrum

The opinion of the court was delivered by: Montgomery

After a trial without a jury, Defendant brought this appeal from her conviction of the class B misdemeanor of driving while intoxicated, § 577.010. *fn1 Paraphrased, her points relied on allege (1) her arrest was unlawful because the arresting officer was a non-certified reserve officer without authority to arrest under § 590.100 to § 590.180, and (2) the State failed to prove she operated a motor vehicle while intoxicated by failing to show she did not consume alcoholic beverages between the time of the stop and the taking of the chemical test.

In a non-jury case, the trial court's findings have the force and effect of a jury verdict. Rule 27.01(b). Therefore, we review this case as though a jury had returned a verdict of guilty, and the judgment will be affirmed if there is any substantial evidence to support the trial court's findings. State v. Giffin, 640 S.W.2d 128, 130 (Mo. 1982). We accept as true all the evidence tending to prove Defendant's guilt and all inferences from the evidence that are favorable to the State, disregarding contrary evidence and inferences. Id.

Viewed in that light, the evidence establishes that on July 3, 1991, about 10:30 p.m. Frank Bernard, a reserve deputy sheriff for Oregon County, was traveling north on Highway 63 between Thayer and Koshkonong. Bernard was driving his private vehicle. Near the location of the "Golden Nugget or Anna's Bar" Bernard saw a Ford pickup pull out into the highway in front of a tractor-trailer unit. The tractor-trailer was forced to pass the Ford pickup to avoid a collision. Suspicious of the "possibility of a DWI," Bernard followed the pickup.

After obtaining the license number of the pickup, Bernard "backed off" and continued to follow the possible offender. Bernard followed the pickup about four miles, observing that it crossed "the center line three times and the right line two times." Eventually the pickup turned onto Z Highway where Bernard turned on his red lights, causing the pickup to stop and pull off the road.

Bernard approached the driver's side of the pickup and found Defendant to be the driver. Upon Bernard's request, she produced her driver's license. After Bernard detected an odor of intoxicants on Defendant's breath, he ran his flashlight through the vehicle, taking "just a casual look of the inside," and saw no containers or coolers. Bernard informed Defendant that she was under arrest for driving while intoxicated and read the Miranda warnings to her.

Bernard then contacted Deputy Sheriff Stairs to transport Defendant to the sheriff's office. While waiting about an hour for Stairs to arrive, Bernard generally waited by the passenger door of his vehicle, parked behind the pickup, with the motor running and the headlights on. Defendant waited for the most part in the driver's seat next to her passenger.

During the wait Defendant exited the pickup two or three times, once requesting a reason for the delay. Bernard observed that her balance, walking and turning was only fair, her speech was coherent, and her ability to follow instructions was good.

Upon his arrival at the scene, Deputy Stairs requested Defendant to perform certain field sobriety tests. When Defendant was directed to lean her head back, extend both arms to her side and touch her nose with her index fingers, she stumbled. Eventually, Deputy Stairs transported Defendant to the sheriff's office in Alton where her breathalyzer test produced a result of ".11."

At trial, Defendant testified she consumed "two beers and a drink of whiskey" while waiting inside the pickup. Defendant claimed the interior of the pickup contained a six-pack of beer and a fifth of whiskey. Bernard testified in rebuttal that he did not "believe she took a drink" while waiting in the pickup. Due to the positioning of the pickup, Bernard stated he could have observed Defendant take a drink had she done so. However, Bernard could not recall if the back window of the pickup was tinted. Concerning the continuity of his observation of Defendant, this exchange occurred:

Q. One other thing, did -- At the point you stopped her until she performed a breathalyzer, did you have -- have her under your observation?

A. Part of the time she was in the cab of the ...

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