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Auck v. Director of Revenue

Court of Appeals of Missouri, Eastern District, First Division

February 23, 2016

MICHAEL AUCK, Respondent,
v.
DIRECTOR OF REVENUE, STATE OF MISSOURI, Appellant

          Appeal from the Circuit Court of St. Louis County. 14SL-AC00530. Honorable Dale W. Hood.

         FOR APPELLANT: Rachel M. Jones, Missouri Department of Revenue, Jefferson City, MO.

         FOR RESPONDENT(s): Chastidy Rebecca Dillon-Amelung, Clayton, MO; Daniel Joseph Bruntrager, Co-Counsel, DILL, BAMVAKAIS & NEWSHAM, P.C., Clayton, MO.

         Mary K. Hoff, Judge. Robert G. Dowd, Jr., Presiding Judge and Roy L. Richter, Judge, concur.

          OPINION

Page 441

         Mary K. Hoff, Judge.

          The Director of Revenue of the State of Missouri (the Director) appeals from the trial court's entry of judgment reinstating the driving privileges of Michael Auck (Driver) after his privileges were revoked by the Director pursuant to Section 577.041 RSMo 2000.[1]

Page 442

We reverse and remand.

         Factual and Procedural Background

         On January 1, 2014, Officer Scheetz and Sergeant Hagen of the Sunset Hills Police Department were dispatched to Helen Fitzgerald's pub regarding a peace disturbance involving a vehicle that almost struck a pedestrian. Officer Johnson, also of the Sunset Hills Police Department, who was on an unrelated call at the Days Inn at the same address, responded to the pub after completing his assignment there. Officer Johnson then contacted Officer Scheetz, who informed him that he had obtained statements from three employees of the pub all of whom reported observing a person driving a silver truck out of the bar's parking lot, and observing that same person return to the parking lot in the truck approximately 15 minutes later, at which time one of the witnesses contacted the Sunset Hills Police Department. The three witnesses' written statements were collected and kept as evidence.

         One of the witnesses, Gregory Waltman (Waltman), identified a silver truck as the vehicle being driven by Driver. Officer Johnson asked Waltman if he could identify the driver of the truck, and Waltman immediately looked in the direction of Driver, who was standing next to Officer Scheetz, pointed at Driver, and stated " the gentlemen next to the Sunset Hills Police Officer (Scheetz)."

         Officer Johnson then approached Driver and informed him that people were saying he was driving recklessly in the parking lot. Officer Johnson noticed Driver was speaking loudly, used profanity, and seemed angry. Driver's speech was slurred, his eyes were watery and bloodshot, he smelled strongly of alcohol, and he was swaying considerably from side to side. When asked why people were saying he was driving recklessly, Driver stated he parked his truck a while ago and had been at the bar all night. Driver stated he did get into an argument with a friend earlier, but that " he never left the parking lot that he could remember."

         Officer Johnson asked Driver if he had consumed any alcohol before he drove away from the pub. Driver did not deny that he drove away from the bar, and replied, " Of course I have been drinking it is New Years." Officer Johnson then asked him if he had consumed any intoxicants after he returned to the pub. Driver replied that he did not because the bouncers would not let him back in the bar. However, Driver did not deny that he had returned to the bar in his vehicle. Based on Officer Johnson's observations of Driver, he asked Driver ...


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