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Thomas v. Director of Revenue

Court of Appeals of Missouri, Eastern District, First Division

June 4, 2019

EARNIE R. THOMAS, Respondent,
v.
DIRECTOR OF REVENUE, Appellant.

          Appeal from the Circuit Court of Jefferson County Honorable Timothy Scott Miller

          OPINION

          ANGELA T. QUIGLESS, J.

         The Director of Revenue ("Director") appeals from the judgment of the trial court reinstating the driving privileges of Earnie R. Thomas ("Mr. Thomas"). The Director asserts one point on appeal, arguing the trial court erred in finding Mr. Thomas' breath test results were inadmissible because they were obtained in violation of Section 577.037.5 RSMo (Cum. Supp. 2007) and Mr. Thomas' due process rights. We reverse the judgment and remand the case to the trial court for further proceedings.

         Factual and Procedural Background

         On October 18, 2015, Mr. Thomas drove his car off the road and crashed into an embankment. The officer investigating the crash asked Mr. Thomas to submit to field sobriety tests and a preliminary breath test. Mr. Thomas consented. After each of these tests indicated Mr. Thomas may be intoxicated, the officer placed him under arrest and took him to the sheriff's office. The officer then informed Mr. Thomas of the Missouri Implied Consent Law, as required by Section 577.041.1 RSMo (Cum. Supp. 2010), and asked him to submit to a chemical breath test of his blood alcohol content. The notice given by the officer included the statutorily required warning: "If you refuse to take the test, your driver license will immediately be revoked for one year." (emphasis added).[1] After hearing this warning, Mr. Thomas submitted to the breath test, which showed that his blood alcohol content was .083%.

         The officer then took possession of Mr. Thomas' driver's license and issued a fifteen-day temporary driving permit with Missouri Department of Revenue Form 2385 Notice of Suspension or Revocation, which states, in relevant part: "You have been stopped and/or arrested upon probable cause that you were driving a vehicle while your blood alcohol level was over the legal limit. Your driving privilege will be suspended or revoked 15 days from the date of this notice if you do not request a hearing."

         Mr. Thomas requested an administrative hearing before the Missouri Department of Revenue. Following the hearing, the suspension was upheld. Mr. Thomas then filed a petition for trial de novo in the circuit court, arguing, inter alia, "the implied consent warning read to [Mr. Thomas] was inaccurate," therefore, "[Mr. Thomas]'s breath test results are inadmissible in that they were obtained in violation of [Mr. Thomas]'s Due Process Rights under Article I section 10 of the Missouri Constitution, as well as the 5th and 14th Amendments of the United States Constitution."

         During the trial de novo, the arresting officer testified regarding Mr. Thomas' arrest. The Director also introduced as Exhibit A an arrest packet which included: the Notice of Suspension, the Alcohol Influence Report, the officer's narrative, the Missouri State Highway Patrol Uniform Citation, a certified copy of Mr. Thomas' Missouri Driver Record, the Intox DMT Maintenance Report, and the breath test results. Mr. Thomas objected to the admission of the breath test results, arguing they were obtained in violation of his due process rights because his consent to the test was invalid in that he was misinformed of the consequences of refusing to submit to the test. Specifically, Mr. Thomas argued that, although Section 577.041.1 expressly required the officer to inform him his license would be "immediately" revoked if he refused to submit, this was not true because the revocation would not actually begin for fifteen days. Because the false information prejudiced his ability to make an informed decision, he argued, the results were inadmissible as obtained in violation of his due process rights.

         The trial court reserved ruling on the objection and allowed the breath test results to be admitted into evidence, subject to additional briefing on the constitutional issue. After trial, the parties each submitted a brief addressing this issue. The Director argued the warning could not be unconstitutional because "[t]he Missouri General Assembly mandated by statute the particular language an officer is required to use when requesting that a driver submit to a test to determine his blood alcohol content" including the language that "the person's license shall be immediately revoked upon refusal to take the test." (emphasis in original). Mr. Thomas argued the test results were obtained in violation of his due process rights because the officer informed him his license would be "immediately" revoked if he failed to submit to the test. This was "blatantly incorrect information" because, under the statute, he would receive a fifteen-day driving permit prior to the date of revocation. The "untrue" and "coercive" warning, he argued, invalidated his consent by prejudicing his ability to make an informed decision.

         The trial court initially issued a judgment sustaining the suspension and finding Mr. Thomas was arrested upon probable cause to believe he was driving while intoxicated, and that Mr. Thomas' blood alcohol content was determined to be in excess of .08%. After reviewing the briefs regarding the constitutional issue, the court entered an order vacating its earlier judgment.

         The court then entered a new judgment finding the breath test results were inadmissible because the use of the word "immediately" in the warning mandated by Section 577.041.1 is "patently untrue," therefore, the test results were obtained in violation of Section 577.037.5[2] and Mr. Thomas' due process rights. The court concluded, in the absence of the breath test results, the Director failed to meet its burden of proving Mr. Thomas' blood alcohol content exceeded .08%. The court then entered its judgment reinstating Mr. Thomas' driver's license. This appeal follows.

         Point on Appeal

         The Director asserts one point on appeal, arguing the trial court erred in finding Mr. Thomas' breath test results inadmissible because the results were not obtained in violation of the requirements of Section 577.037.5, or Mr. Thomas' due process rights, in that the law requires that officers use particular language when requesting that a person submit to a test to determine his or her blood alcohol concentration, ...


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