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Carvalho v. Director of Revenue

Supreme Court of Missouri, En Banc

April 30, 2019


          Appeal from the Circuit Court of Franklin County Honorable Stanley Williams, Judge


         Matthew Carvalho appeals the suspension of his driver's license for driving while intoxicated. He argues the circuit court erred in admitting the report showing his blood alcohol content (BAC) was .087 percent, over the legal limit, because the director of revenue did not present evidence showing the report was timely filed with the department of health and senior services (DHSS). He also alleges the implied consent notice failed to comply with due process because it misled him in stating his license would be suspended immediately if he refused the breath test and in failing to tell him the consequences of taking the breath test. Finally, he alleges a later notice of suspension given him after he failed the breath test did not adequately inform him what the director of revenue would have to prove to suspend his license.

         This Court affirms. The filing of the report with DHSS is a collateral requirement that does not affect the performance of the test or its validity or accuracy, and, so, a failure to timely make that filing does not preclude admission of the report. Further, the implied consent notice was accurate in telling Mr. Carvalho his license would be suspended immediately should he refuse the breath test. The fact he would then be given a 15-day permit did not change that fact. Nothing in Missouri law or in the due process clause required the officer to tell Mr. Carvalho the consequences of taking the breath test, to which he had already had consented by driving on Missouri's roads. It was only as to the consequences of withdrawing that consent that he required notice. Finally, the notice of suspension accurately told Mr. Carvalho the facts required by statute to suspend his license and how to request a hearing. Due process did not require the officer to explain the law regarding the burden of proof the director would bear at that hearing.


         An officer from the Washington, Missouri, police department stopped Mr. Carvalho on May 10, 2017, for speeding. Mr. Carvalho had crutches in the car and stated he had been at a hospital due to a foot injury. The officer's report states he suspected Mr. Carvalho was driving while intoxicated based on his "very strong odor of intoxicants" and "watery, bloodshot, and glassy" eyes. Mr. Carvalho said he had not been drinking but declined to allow the officer to perform a horizontal eye nystagmus test, stating, "I ain't doing that, you can talk to my lawyer." In the incident report, the officer noted Mr. Carvalho slurred his words when he spoke. The officer asked Mr. Carvalho to exit the vehicle, which he did with the assistance of his crutches. The officer asked Mr. Carvalho to provide a sample of his breath and advised him of Missouri's implied consent law. When Mr. Carvalho refused, the officer arrested him for speeding and driving while intoxicated and transported him to the Washington police station.

         At the police station, the officer asked Mr. Carvalho to provide a breath sample and read him what is commonly referred to as "the implied consent warning" contained in the Missouri department of revenue alcohol influence report:

You are under arrest. I had reasonable grounds to believe you were driving a motor vehicle while in an intoxicated or drugged condition. To determine the alcohol or drug content in your blood, I'm requesting you to submit to a chemical test of your breath. If you refuse to take the test, your driver's license will immediately be revoked for one year. Evidence of your refusal to take the test may be used against you in prosecution in a court of law. Having been informed of the reasons for requesting the test, will you take the test?

         Mr. Carvalho asked to speak with an attorney. After doing so, Mr. Carvalho agreed to take the breath test. It showed Mr. Carvalho had a BAC of .087 percent. When a breath test shows a BAC above .08 percent, the officer:

2. … shall take possession of any driver's license issued by this state which is held by the person [and] … shall issue a temporary permit which is valid for fifteen days after its date of issuance and shall also give the person arrested a notice which shall inform the person of all rights and responsibilities pursuant to sections 302.500 to 302.540. … The notice shall also contain a detachable form permitting the arrested person to request a hearing.

§ 302.520.1, .2. [1]

         As required by this statute, the officer took possession of Mr. Carvalho's license and provided him with a 15-day temporary permit with notice that his "driving privilege will be suspended or revoked 15 days from the date of this notice if you do not request a hearing" and with a form explaining how to request a hearing. As required by section 302.510, the officer prepared and forwarded a report to the department of revenue. Mr. Carvalho does not contest these procedures were followed.

         Based on the officer's report, the department determined Mr. Carvalho was arrested upon probable cause to believe he was driving a motor vehicle with a BAC above .08, and suspended his license.[2] Section 302.505.2 provides this determination "shall be final unless a hearing is requested and held. If a hearing is held, the department shall review the matter and make a final determination on the basis of evidence received at the hearing." Mr. Carvalho timely requested a hearing. § 302.530. The hearing officer sustained the suspension. Mr. Carvalho then timely filed a petition for trial de novo. § 302.535.

         Section 302.312 provides, "Copies of all records lawfully filed in the offices of the department of revenue or the bureau of vital records of the department of health and senior services and copies of any records, properly certified by the appropriate custodian or the director," are admissible as evidence. Accordingly, the department submitted as exhibit A at the trial de novo a certified copy of the formal notice of suspension, as well as the alcohol influence report, blood alcohol test report, uniform citation, DHSS "Intox EC/IRII Maintenance Report," incident report, arrest report, misdemeanor probable cause statement, and Mr. Carvalho's driving record. The department did not present any live testimony.

         Mr. Carvalho objected to the admission of the portion of exhibit A containing his .087 BAC test results because he alleged admission would violate Missouri regulations and his due process rights:

Your Honor, my only objection to Exhibit A would be any introduction of the alleged BAC result as they are found in that exhibit. Specifically, my objection would be that my client -- there was no probable cause for the arrest. My client's due process rights were violated in obtaining the breath result, and also the foundational requirements in 19 CSR 25-30.0313 were not satisfied.

         Consistent with what he told the officer at the scene, Mr. Carvalho testified in his defense that he did not drink at all on the day of his arrest and had recently left the hospital after injuring his foot just prior to the time he was pulled over. Although he spoke with a lawyer after receiving the warning, he said he took the breath test based on use of the word "immediately" in the warning because he thought this meant if he did not take the test he would be prohibited from driving for the remainder of the year to work and to school and was concerned he would lose his job. He testified he did not realize he would get a temporary permit.

         The circuit court sustained the suspension of Mr. Carvalho's driving privilege. Mr. Carvalho's timely appeal was transferred to this Court because Mr. Carvalho challenges the validity of sections ...

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