Court of Appeals of Missouri, Eastern District, Fourth Division
KRISTIN L. HOWE, Respondent,
DIRECTOR OF REVENUE, STATE OF MISSOURI Appellant.
from the Circuit Court of Ralls County, Honorable David C.
S. ODENWALD, PRESIDING JUDGE.
Director of Revenue (the "Director") appeals from
the circuit court's judgment reinstating the driving
privileges of Kristin L. Howe ("Howe") following
revocation of Howe's license for refusing to submit to a
chemical test. The Director argues the circuit court erred in
reinstating Howe's driving privileges because Howe
refused the law enforcement officer's request to submit
to a blood test. Because the officer did not give Howe the
required implied consent warning for the blood test, the
officer's request was insufficient under Section
577.041.2. As a result, the Director cannot show Howe
validly refused to submit to a properly requested blood test.
Because a valid refusal was required to uphold Howe's
license revocation, we affirm the judgment of the circuit
and Procedural History
Director raises two points on appeal. Because we find the
second point dispositive to this appeal, we review only the
facts pertinent to this point.
evidence relevant to the dispositive point on appeal is as
follows: Trooper Adam Hitt ("Trooper Hitt") stopped
Howe for failure to dim her lights to oncoming traffic.
Trooper Hitt observed that Howe had bloodshot, glassy eyes
and an odor of alcohol. Howe admitted to having consumed one
drink. Subsequently, Trooper Hitt conducted field sobriety
tests to determine whether Howe was driving under the
influence of alcohol ("DWi"). Trooper Hitt then
arrested Howe for DWI.
sheriffs office, Trooper Hitt read Howe the implied consent
warning for a breath test as contained in the Alcohol
Influence Report ("AIR") from his patrol laptop.
Trooper Hitt manually checked the boxes of the AIR as he read
the consent to Howe. Trooper Hitt first read the contents of
Box 1 to Howe: "You are under arrest and I have
reasonable grounds to believe you were driving a motor
vehicle while you were in an intoxicated or drugged
condition." Trooper Hitt next read the contents of Box 2
to Howe. Box 2 ends with three blank boxes that the officer
completes by identifying the test or tests requested. Here,
Box 2 reads: "To determine the alcohol or drug content
of your blood, I am requesting you submit to a chemical test
of your breath."
Hitt read Howe the remaining boxes of the implied consent
warning as those warnings related to a breath test. The
warnings advised Howe that a refusal to submit to the test
would result in her license being revoked for one year. Howe
submitted to the breath test. Trooper Hitt administered the
breath test using an Intox DMT device three times. The tests
on Howe's breath samples were unsuccessful due to radio
Hitt then asked Howe to submit to a blood draw at Hannibal
Regional Hospital to determine her blood alcohol content.
Trooper Hitt did not read to Howe any implied consent warning
for the blood test. Trooper Hitt did not inform Howe that her
refusal to submit to the blood test would result in the
revocation of her license. Howe did not agree to allow her
blood to be drawn for purposes of determining the alcohol
level in her blood. Trooper Hitt then personally served Howe
with a notice of license revocation on behalf of the Director
for failure to submit to a chemical test.
petitioned the circuit court for review of her license
revocation. The circuit court conducted a trial and entered
judgment in favor of Howe, finding that there was no probable
cause for Howe's arrest. The circuit court further found
that "[b]ecause [Howe] was not warned that her
driver's license would be revoked for refusal to submit
to a blood test, her refusal is not valid." The circuit
court then set aside the revocation of Howe's
Director now appeals.