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Ducote v. Director of Revenue

Court of Appeals of Missouri, Eastern District, Fourth Division

June 18, 2019

RICHARD DUCOTE, Appellant,
v.
DIRECTOR OF REVENUE, Respondent.

          Appeal from the Circuit Court of Jefferson County Honorable Dianna L. Bartels.

          Kurt S. Odenwald, Presiding Judge.

         Introduction

         Richard 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 court's judgment.

         Factual and Procedural History

         Trooper 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.

         Ducote 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.

         Trooper Baker arrested Ducote and read him both his Miranda rights and the Missouri Implied Consent Law.[1] 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[2]; the Director subsequently revoked Ducote's driving privileges.

         Ducote petitioned the circuit court to review the revocation of his driving privileges.[3] 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.

         Following 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.

         Point on Appeal

         In his 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.

         Standard of Review

         Similar 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 ...


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