Court of Appeals of Missouri, Eastern District, Third Division
Appeal from the Circuit Court of St. Louis County. 13SL-AC32564. Honorable Dale W. Hood.
For Appellant: John W. Peel, St. Louis, MO.
For Respondent: Rachel M. Jones, Jefferson City, MO.
Gary M. Gaertner, Jr., Judge. Kurt S. Odenwald, P. J., concurs., Robert G. Dowd, Jr., J., concurs.
Gary M. Gaertner, Jr., Judge
This case involves the Director of Revenue (Director) relying solely on an Alcohol Influence Report (AIR) and the AIR's narrative of Police Officer Jeffrey DeVorss (Officer DeVorss) as its only evidence in Ryan McPhail's (Appellant) driver's license revocation hearing for Appellant's refusal to submit to a breath test. Appellant appeals the trial court's judgment sustaining the revocation of Appellant's driver's license. Appellant argues that the judgment is unsupported by substantial evidence in that the Director did not prove Appellant refused to submit to the test under Section 577.041.1. We reverse.
The following facts are contained in the arresting officer's AIR and its narrative. On September 29, 2013, at 10:56 p.m., Officer DeVorss conducted a traffic stop after observing a vehicle drifting and swerving on the road, nearly hitting cars parked along the side of the road. The driver, later identified as Appellant, did not acknowledge Officer DeVorss' instructions to remain in the driver's seat, but instead he exited the car and shut and locked the door. Officer DeVorss told Appellant he could sit on the curb, and Appellant complied. Officer DeVorss asked Appellant for his driver's license and insurance card. As Appellant retrieved his license from his wallet and his insurance card from his car, he needed Officer DeVorss' help to get to his car. Officer DeVorss observed Appellant lose his balance, stumble, sway, and walk with uncertain steps.
Additionally, Officer DeVorss observed that Appellant's eyes were watery and bloodshot, and Appellant's pupils were dilated. Officer DeVorss also detected a strong odor of an alcoholic beverage on Appellant's breath. Appellant's speech was slurred and he mumbled as he spoke. Appellant initially denied consuming any alcoholic beverages that evening, but Appellant later admitted that he had " [n]ot enough," but that he " did drink a little."
Officer DeVorss asked Appellant if he would submit to a series of field sobriety tests, and Appellant refused. Officer DeVorss asked Appellant to submit to a preliminary breath test, and Appellant refused. Officer DeVorss ...