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Neff v. Director of Revenue

Court of Appeals of Missouri, Southern District, Second Division

July 30, 2014

JOSEPH DEWAYNE NEFF, Petitioner-Appellant,
v.
DIRECTOR OF REVENUE, Respondent-Respondent

APPEAL FROM THE CIRCUIT COURT OF CRAWFORD COUNTY. Honorable Scott Bernstein, Associate Circuit Judge.

ZACHARY W. RENNICK, Washington, MO, for Appellant.

RACHEL M. JONES, Jefferson City, MO, for Respondent.

DON E. BURRELL, J. - OPINION AUTHOR. MARY W. SHEFFIELD, P.J. - CONCURS. NANCY STEFFEN RAHMEYER - J. - CONCURS.

OPINION

Page 395

DON E. BURRELL, J.

The Director of Revenue (" the Director" ) revoked the driving privileges of Joseph Dewayne Neff (" Driver" ) for one year pursuant to section 577.041[1] for refusing to submit to a breath test. Driver filed a petition for review with the circuit court, which upheld the revocation in a judgment entered June 27, 2013.

Driver now appeals, claiming the Director " produced absolutely no evidence at trial that the arresting officer ever informed [Driver] of any of the information required by [section] 577.041 or the Missouri Implied Consent Law." We agree.[2]

Facts and Procedural History

The May 28, 2013 post-revocation trial was a model of brevity if not efficacy, being reproduced on a mere 10 1/2 pages of transcript. The only evidence presented on the Director's behalf was oral testimony from Todd Hickey, an officer with the Cuba Police Department. Officer Hickey testified that he received a dispatch on October 3, 2012 between 3 and 4 o'clock in the afternoon " regarding an intoxicated driver[.]" Officer Hickey drove to the area described, and he saw a black vehicle in a driveway that matched the description of the vehicle he had been given. Officer Hickey approached Driver, who was sitting in the driver's seat of the vehicle. Based on his interaction with Driver, Officer Hickey believed Driver to be intoxicated, and he attempted, apparently unsuccessfully at first, to place Driver under arrest.

Regarding Driver's refusal to take a breath test, Officer Hickey was asked only the following questions, to which he provided the following responses.

Q[:] Did you ask [Driver] to give a breath test?
A[:] Yes, I did.
Q[:] Did he ...

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