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Allison v. Director of Revenue

Court of Appeals of Missouri, Western District, Special Division

August 1, 2017

ROXANNE ALLISON, Appellant,
v.
DIRECTOR OF REVENUE, Respondent.

         Appeal 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

         Roxanne 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 Background[1]

         On 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.

         Trooper 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 moment.

         After 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.

         Following 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.

         Trooper 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.

         Approximately 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 attorney.[2]

         As a 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.[3] 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 ...


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