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Howe v. Director of Revenue

Court of Appeals of Missouri, Eastern District, Fourth Division

February 13, 2019

KRISTIN L. HOWE, Respondent,
v.
DIRECTOR OF REVENUE, STATE OF MISSOURI Appellant.

          Appeal from the Circuit Court of Ralls County, Honorable David C. Mobley Judge.

          KURT S. ODENWALD, PRESIDING JUDGE.

         Introduction

         The 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.[1] 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 court.

         Factual and Procedural History

         The 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.

         The 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.

         At the 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."

         (Image Omitted.)

         Trooper 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 frequency interference.[2]

         Trooper 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.

         Howe 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 driver's license.

         The Director now appeals.

         Points ...


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