Court of Appeals of Missouri, Western District, Special Division
from the Circuit Court of Callaway County, Missouri The
Honorable Carol A. England, Judge
Before: Zel M. Fischer, Special Judge, Presiding, Karen King
Mitchell, Judge and Cynthia L. Martin, Judge
Cynthia L. Martin, Judge
Allison ("Allison") appeals from a judgment
sustaining the revocation of her driving privileges based on
her refusal to submit to a chemical test of her breath to
determine the alcohol content of her blood. We affirm.
Factual and Procedural
November 5, 2015, Trooper Shaun Brazas ("Trooper
Brazas") arrested Allison for driving while intoxicated.
Trooper Brazas transported Allison to the Callaway County
Jail. Upon arriving at the jail, and while Allison remained
handcuffed in the patrol car, Trooper Brazas read Allison the
implied consent portion of the Alcohol Influence Report.
Specifically, Trooper Brazas told Allison that he had
reasonable grounds to believe that she was driving a motor
vehicle while in an intoxicated condition; that to determine
the alcohol content of her blood, he was requesting her to
submit to a chemical test of her breath; that if she refused
to take the breath test, her driver's license would be
immediately revoked for one year; and that evidence of a
refusal to take the test could be used against her at
prosecution in a court of law.
Brazas then asked Allison, "Having been informed for
[sic] the reasons for requesting the test, will you take the
test, yes or no?" Allison responded by asking for a
brief pause, Allison said that she could not believe the
trooper was doing this to her. Trooper Brazas repeated his
question, "Having been informed for [sic] the reasons
for requesting the test, will you take the test, yes or
no?" Allison asked for another moment to answer. After
another pause, Trooper Brazas asked, "Yes or no?"
again, and told Allison that it would be a refusal if she did
not answer. He repeated, "Yes or no?" Allison did
not respond "yes" or "no."
Trooper Brazas asked Allison if she understood the
consequences of a refusal to submit to a breath test. After
she stated that she maybe did not understand, Trooper Brazas
repeated the implied consent warning. Again, he asked,
"Will you take the test, yes or no?" Allison
replied that her face itched. Trooper Brazas again repeated
the question. Allison asked whether her license would be
taken for a year if she did not take the test, and Trooper
Brazas confirmed that it would.
another brief pause, Trooper Brazas again asked if Allison
would take the test, "Yes or no?" He also stated
that he was not trying to trick her. Allison replied that she
knew he was not trying to trick her, and that her face
itched. Trooper Brazas asked Allison again, "Will you
take the test, yes or no?" He also restated that if she
failed to answer, then he would treat the failure to answer
as a refusal. Allison replied that she was not trying to fail
to answer. Trooper Brazas replied, "So, yes or no?"
Allison did not give a yes-or-no response.
Brazas indicated an intent to deem Allison's non-response
as a refusal to submit to a breath test. He began to exit the
patrol car. Allison tried to explain, "That's not
what I said." Trooper Brazas again asked, "Yes or
no?" Allison did not respond with a yes-or-no answer.
three to four minutes transpired between Trooper Brazas's
initial request that Allison submit to a breath test and when
he indicated his intent to deem her non-response a refusal.
During that period of time, Allison never stated that she
would or would not take the requested test. Allison never
requested the opportunity to contact an
result of Allison's deemed refusal to submit to the
requested breath test, the Director of Revenue
("Director") revoked Allison's driving
privileges for one year pursuant to 577.041. Allison filed a
petition for review of her license revocation. She and
Trooper Brazas testified at a hearing on the matter.
Dashboard camera and in-car video of Allison's arrest was
submitted into evidence. The trial court entered its judgment