Court of Appeals of Missouri, Eastern District, Fourth Division
from the Circuit Court of Jefferson County Honorable Dianna
S. Odenwald, Presiding Judge.
Ducote ("Ducote") appeals from the circuit
court's judgment upholding the revocation of his driving
privileges. In his sole point on appeal, Ducote alleges that
the circuit court erred in revoking his driving privileges
because he presented uncontroverted evidence that he did not
refuse to submit to a chemical test. Because the arresting
officer provided testimony that Ducote refused to submit to a
requested breath test, the circuit court did not err in
upholding the Director of Revenue's (the
"Director's") revocation of Ducote's
driving privileges. Accordingly, we affirm the circuit
and Procedural History
Orry Baker ("Trooper Baker") responded to the scene
of a vehicle collision. Trooper Baker determined from his
investigation that the passenger car in front of Ducote
slowed to make a left-hand turn and Ducote's truck struck
the rear of the car. Trooper Baker spoke with Ducote-who
admitted to having driven the vehicle that rear-ended the
passenger car. During their conversation, Trooper Baker
noticed that Ducote slurred and mumbled some of his words,
Ducote's breath had a strong odor of intoxicating
beverage, Ducote swayed as he stood, and Ducote's eyes
were glassy, bloodshot, and watery.
admitted to drinking two beers prior to driving his truck.
Trooper Baker asked Ducote to perform field sobriety tests.
After a discussion and some hesitation, Ducote agreed.
Trooper Baker administered the horizontal gaze nystagmus
test. Ducote exhibited six clues of intoxication. Ducote then
submitted a sample into the preliminary breath test
("PBT"), which tested positive for alcohol.
Subsequently, Ducote performed the alphabet-recitation test,
which he conducted without error. Lastly, Trooper Baker asked
Ducote to complete a counting test; Ducote performed poorly.
Baker arrested Ducote and read him both his Miranda rights
and the Missouri Implied Consent Law. Ducote subsequently
consented to take a breath test. Trooper Baker then
transported Ducote to the Jefferson County Sheriffs Office
North Zone to conduct the breath test. After heeding the
fifteen-minute observation period, Trooper Baker was unable
to get a breath sample from Ducote due to incomplete
maintenance on the machine. Trooper Baker informed Ducote
that the machine was not functioning and told Ducote the next
closest machine was at the Sunset Hills Police Department.
Ducote then refused to take the test. Specifically, Ducote
told Trooper Baker "I don't-I just want to refuse
then. I don't want to go up there." Trooper Baker
issued Ducote a refusal notice pursuant to Sections
302.574.1, 577.041; the Director subsequently revoked
Ducote's driving privileges.
petitioned the circuit court to review the revocation of his
driving privileges. At the hearing, Ducote testified that at
no time did he refuse to submit a breath sample. Instead of
refusing, Ducote testified that he simply stated-after
learning that they would need to travel to Sunset Hills-that
he had health insurance and could do a blood test instead.
Ducote claimed he was not unwilling to travel to the Sunset
Hills location nor did he refuse to take the test. Trooper
Baker testified that he did not recall whether Ducote
suggested they go to the hospital for a blood test.
the hearing, the circuit court upheld the revocation of
Ducote's driving privileges. Specifically, the circuit
court issued a judgment consisting of a pre-printed form on
which it checked boxes indicating its determinations. The
circuit court checked a box showing that the cause was
submitted upon the certified copy of the Alcohol Influence
Report and the testimony of the arresting officer. The
circuit court also checked the box indicating that there were
reasonable grounds to believe that Ducote was driving a motor
vehicle in an intoxicated condition and had refused to submit
to the test(s) requested by Trooper Baker. The circuit court
did not check the box indicating testimony was presented by
the petitioner. Ducote now appeals.
sole point on appeal, Ducote argues that the circuit court
erred in revoking his driving privileges because the circuit
court failed to consider Ducote's testimony and Ducote
presented uncontroverted evidence that he did not refuse to
submit to the chemical test requested by Trooper Baker.
to other court-tried cases, in our review of a court-tried
case involving a license revocation, "the [circuit]
court's judgment will be affirmed unless there is no
substantial evidence to support it, it is against the weight
of the evidence, or it erroneously declares or applies the
law." White v. Dir. of Revenue. 321 S.W.3d 298,
307-08 (Mo. banc 2010) (citing Murphy v. Carron. 536
S.W.2d 30, 32 (Mo. banc 1976)). We will find the circuit
court's judgment is against the weight of the ...