WILLIAM W. FRANCIS, JR., J.
The Director of Revenue ("Director") revoked the driving privileges of Austin C. Brewer ("Brewer") pursuant to section 577.041.
The record reveals that on October 23, 2010, Lindel Gregory, a ranger with the National Park Service ("Ranger Gregory"), was "responding to a wildfire" when his vehicle came up behind that of Brewer and he observed Brewer "driving to the left of the centerline...." After watching Brewer's vehicle "straddling the centerline" for a short distance, Ranger Gregory continued to follow the vehicle "to make sure it wasn't just someone that was inattenti[ve]." He then witnessed Brewer's vehicle travel "completely into the oncoming lane as [they] were kind of going up over a hill and around a curve." Believing Brewer to be "a danger to the public[,]" Ranger Gregory then "contacted" the Shannon County Sheriff's Department "and requested a deputy or trooper." Apparently, while Ranger Gregory was contacting the sheriff's department, Brewer "pulled off to the side of the road" at which time Ranger Gregory "activated [his] emergency lights and pulled to the side of the road...." He "had contact with [Brewer]"; "talked to him for just a brief moment"; "asked him to get out of [his] vehicle"; and at some point requested to see his driver's license. He related to Brewer that he had "observed [Brewer's] driving behavior and [he] felt like it was kind of a danger, and that [Brewer] would be detained [until] a state officer arrived."
Approximately forty-five minutes later, Paul Wells, a trooper with the Missouri State Highway Patrol ("Trooper Wells"), accompanied by a Corporal Cravens, arrived on the scene and Ranger Gregory informed them of "what [he] had observed and asked them if [he] needed [to do] anything further. [He] told them that [he] was en route to a wild land fire, and Corporal Cravens told [him to] go ahead and continue on." Ranger Gregory performed no field sobriety tests on Brewer, did not administer a breathalyzer or other test, and had no other involvement in the matter before he departed.
Trooper Wells, who prior to his arrival had been advised that "a National Park Service Ranger had detained an individual on [Highway] 106 he believed was possibly intoxicated[,]" took over the situation after speaking with Ranger Gregory for less than five minutes. Trooper Wells spoke with Brewer, requested that he accompany him to his patrol car, and "performed a registration check of his vehicle and his driving status." Trooper Wells "noticed a strong odor of intoxicating beverage on [Brewer's] breath while he was seated in [his] vehicle." Brewer then agreed to perform a series of field sobriety tests. Trooper Wells reported there was a lack of "smooth pursuit in both [Brewer's] eyes" on the horizontal gaze nystagmus test; Brewer had "[q]uite some difficulty" in performing the walk-and-turn test such that he had to "be directed out of the highway several times"; and Brewer had "difficulty" with the one-leg-stand test and had to be re-instructed. Trooper Wells then informed Brewer he believed him to be "intoxicated and placed [Brewer] under arrest for driving while intoxicated." Brewer was then handcuffed and placed in Trooper Wells' patrol vehicle. He was thereafter transported to the Ellington Police Department. While Brewer was being transported, Trooper Wells did not actively question him although Brewer "voluntarily stated several times that he knew that he had done wrong and that he shouldn't have been drinking that evening." Once at the police department, Brewer was advised of his Miranda
Brewer filed his "PETITION TO SET ASIDE REVOCATION" on November 1, 2010, in which he requested the trial court set aside the revocation of his driving privileges by Director on the basis that "there was no probable cause for the arresting officer to stop the vehicle being driven by [Brewer]"; there was no "probable cause to believe [Brewer] had been driving while intoxicated"; "the arresting officer did not apprise [Brewer] of the consequences under the law should he fail and refuse to take the breathalyzer test"; Brewer "did not in fact refuse to take the test"; and Brewer "requested to phone/contact a lawyer regarding the breathalyzer test and his request was denied by the arresting officer prior to making a decision as to whether he should or should not take the test."
On May 25, 2011, a hearing was held.
At issue in Director's sole point relied on is whether the trial court erred in excluding evidence relating to Brewer's intoxication by applying the exclusionary rule in a civil license revocation proceeding.
Our review is governed by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976), in driver's license suspension and revocation cases. Connelly v. Dir. of Revenue, 291 S.W.3d 318, 319 (Mo.App. E.D.2009). As a result, the judgment of the trial court 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).
It has long been the case that "[t]he operation of a motor vehicle while intoxicated may give rise to two proceedings, one criminal ... and the other civil (revocation of license) each proceeding independent of the other." Tolen v. Missouri Dept. of Revenue, 564 S.W.2d 601, 602 (Mo.App. K.C.D.1978). Strangely enough, it appears from the parties' briefs that in this matter, the only evidence considered by the trial court in ruling on Brewer's civil petition for review was adduced at a suppression hearing relating to the criminal charges pending against Brewer. See Woodard v. Dir. of Revenue, 876 S.W.2d 810, 811 (Mo.App. S.D.1994) (holding that where a fact is asserted in one party's brief and conceded to be true in the adversary's brief, we may consider it as though it appears in the record). While we have little information in the record relating to the criminal charges against Brewer or the issues in his motion to suppress, the transcript reveals the following arguments:
Based on the trial court's notation in the civil Judgment that "[t]his court having heretofore suppressed any and all evidence resulting from the stop of [Brewer]," it appears the trial court granted Brewer's motion to suppress in the criminal case.
We are mindful that the sole issue here is the civil proceeding relating to the revocation of Brewer's driving privileges for failure to comply with the Implied Consent law. See § 577.041.4. As such, the only issues to be decided by the trial court at the hearing were: "(1) whether or not [Brewer] was arrested or stopped; (2) whether [Trooper Wells] had reasonable grounds to believe [Brewer] was driving a motor vehicle while in an intoxicated or drugged condition; and (3) whether or not [Brewer] refused to submit to the test." Hinnah v. Dir. of Revenue, 77 S.W.3d 616, 620 (Mo. banc 2002); § 577.041.4. This list of elements found in section 577.041 is very specific about what the trial court can consider at such a hearing and it does not require a showing that the initial stop was valid or even that the arrest was lawful. Hinnah, 77 S.W.3d at 618-21.
Here, it appears, based on the wording in the trial court's Judgment, that it found "as a matter of law" Trooper Wells "did not have reasonable grounds to believe [Brewer] was driving a motor vehicle while in an intoxicated or drugged condition" because of the fact that the trial court had "heretofore suppressed any and all evidence resulting from the stop of [Brewer]." The suppression or exclusion of evidence via the exclusionary rule
Accordingly, Director should be given an opportunity to present the aforementioned evidence to the trial court for its proper consideration, consistent with this opinion, such that this case is remanded to the trial court for that purpose.
GARY W. LYNCH, P.J., and NANCY STEFFEN RAHMEYER, J., concur.
We also note that our high court's ruling in White necessarily overrules prior case law dealing with standards of review and other considerations relating to these types of sections 577.041 and 302.535 cases. To the extent cases cited in this opinion are in conflict with the holding in White, they are cited herein to support other principles of law not affected by the White ruling.
(Emphasis in original). Brewer asserts this subsequent order clarifies the trial court's Judgment by specifically stating "that the [trial court] admitted into evidence the testimony and evidence adduced at the suppression hearing" such that it is "plain" that "the decision was not based on the exclusionary rule or any suppression issues. Rather it was based on the evidence presented at the hearing." The problem with Brewer's argument is that the Order at issue was filed on June 30, 2011, which was more than thirty days after the filing of the Judgment in this matter on May 25, 2011, such that the trial court had already been divested of its jurisdiction. Rule 75.01, Missouri Court Rules (2011). We do not, and cannot, consider this Order in our evaluation of this matter.