Court of Appeals of Missouri, Eastern District, First Division
Appeal from the Circuit Court of St. Charles County. Hon. William E. Alberty.
Rachel M. Jones, Jefferson City, MO, for appellant.
Patrick Jerome Coyne, Lake St. Louis, MO, for respondent.
CLIFFORD H. AHRENS, Judge. Lawrence E. Mooney, P. J., concurs. Glenn A. Norton, J., concurs.
CLIFFORD H. AHRENS, Judge
The Director of Revenue appeals the trial court's judgment reinstating George Vargo's driving privileges after they were revoked due to Vargo's refusal to submit to a breathalyzer. We reverse and remand to restore the revocation.
On December 1, 2012, in St. Charles County, Trooper Jordan Hilliard followed a pick-up truck driven by Mr. Vargo for approximately two and a half miles before pulling him over for expired license plate tags. The tags had expired the previous day (November 30). Once stopped, Trooper Hilliard asked Vargo if he had had anything to drink that evening. Vargo replied that he had had " a couple beers" while out to dinner with his wife, who was in the passenger seat. Hilliard asked Vargo to exit the vehicle and asked Vargo to complete various field sobriety tests, after which Hilliard concluded that Vargo was intoxicated. Hilliard then transported Vargo to the St. Charles County jail to undergo a breath test.
As Hilliard prepared the breathalyzer machine in a holding room, Vargo noticed a sign warning against use of the machine in the presence of active radios or electronics. Meanwhile Hilliard was struggling to operate the machine, her laptop was on, and her radio was receiving transmissions. Vargo stated that he didn't feel comfortable with Hilliard operating the machine under such conditions, so he declined to submit to the breathalyzer and offered to provide a blood sample instead. Hilliard rejected Vargo's proposal and had him sign a form acknowledging his refusal to submit to the breath test.
Pursuant to § 577.041, the Director administratively revoked Vargo's driver's license for refusing the test. Vargo filed a petition for judicial review, and the court held a hearing at which Vargo adduced the only evidence, consisting of the alcohol influence report, accompanying narrative, Vargo's driving record, the refusal form, and his own testimony. Vargo testified that Hilliard's alcohol influence report was unfair or incorrect in various respects. For example, Vargo was forced to perform the one-leg stand for nearly a minute on a leg that had undergone surgery; Hilliard reported that Vargo drank three glasses of wine rather than " a couple beers," and Hilliard reported that Vargo stumbled on a grassy slope though the shoulder was paved and flat. Hilliard did not appear or testify.
The trial court ruled in Vargo's favor and reinstated his driving privileges, finding that Vargo did not refuse to submit to a test in that he distrusted the breathalyzer and requested a blood test instead but was denied that option. The Director appeals, asserting that the trial court legally ...