In a recent decision, the Missouri Court of Appeals upheld the standard required for the Director of Revenue to prove in DWI cases involving an alleged refusal to submit to a breath test.  The case was Ryan McPhail v. Director of Revenue (ED101307, from December 2014).  The Appellant, McPhail, argued that the Director had not proved he refused to submit to a breath test under RSMo. 577.041.1.  The Appellate Court agreed with him.

The facts were as follows.  The police officer conducted a traffic stop after observing a vehicle swerving and hitting parked cars.  The officer told the driver to get out and sit on the curb, and then told him to get his license and insurance.  The officer claimed he noticed signs of impairment, like slurred speech and stumbling; he asked McPhail to perform sobriety tests and take a breath test, and McPhail allegedly refused.  He was then arrested.

The officer informed him of Missour’s Implied  Consent Law and asked him to take a chemical breath test.  McPhail asked to speak to an attorney.  The officer told McPhail that he had twenty minutes to contact his attorney, and then he would again be asked to take the test.  McPhail was booked and processed for DWI.  The trial court found that he had “refused” to submit to a breath test, and that he would have his license revoked for one year.  He then appealed.

On appeal, McPhail argued that the Director of Revenue failed to establish a violation of the Missouri Implied Consent Law for two reasons:  (1) his refusal was equivocal in that it was conditioned on speaking to his attorney; and (2) there was no evidence that the officer asked McPhail to submit to a breath test after the 20 minute statutory period had expired.  Thus, he took the position that he never voluntarily and unequivocally “refused” to submit to a chemical test as required by RSMo. 577.041.1.  The appeals court agreed.

In Missouri, a license revocation for a refusal to submit to a chemical test will be upheld if: (1) the driver was stopped and arrested; (2) the arresting officer had reasonable grounds to believe that the driver was in an impaired condition; and (3) the driver refused to submit to a breath test.  Brown v. Dir. Of Revenue, 164 S.W.3d 121, 125 (Mo. App. E.D. 2005).  The Director is required to prove these elements.

What is a “refusal”?  It is a “declining on one’s own volition to take the test…when requested by an officer to do so.” Webb v. Dir. Of Revenue, 157 S.W.3d 769, 772 (Mo. App. E.D. 2005).  A conditional refusal is also a refusal, except when a driver qualifies a refusal on his or her having an opportunity to contact an attorney.  Id.  Section 577.041.1 states that when a driver requests to speak to an attorney, he or she must be given a 20-minute period of time in which to do so.  Once this period expires, if the driver continues to refuse to submit to any test, it will be deemed a refusal.  RSMo. 577.041.1.

Also, if the driver abandons his attempt to contact an attorney and makes a final decision before the 20 minute period expires, then it is a refusal.  Bacandreas v. Dir. Of Revenue, 99 S.W. 3d 497, 500 (Mo. App. E.D. 2003).

In McPhail’s case, it was clear that he never abandoned his attempt to speak to an attorney.  The alcohol influence report (AIR) that the officer filled out was silent about the time sequence of events, and this was something that troubled the appellate court.  The court stated that “it is entirely unclear from the AIR and its narrative whether Appellant continued to refuse to take the breath test after being given an opportunity to contact an attorney.”

Since the burden was on the Director to prove the required elements, the court had to look at what it was given in the record.  And the AIR here was simply flawed.  This was something that the court found significant:

This is a proceeding that carries with it immense repercussions for a petitioner.  There is no legal principle or presumption that allows a court to divine the officer’s meaning or to supply missing clarification where seeming errors and omissions in the AIR and its narrative create ambiguity.

All the court had in front of it was the AIR.  There was no live testimony. All it could do was base its decision on what it had in front of it, and this was deficient.  Since the officer was not called to testify, the court had to go with what it had.  And this fell short of what the director was required to prove under the statute.  Thus, the court found that the director failed to show that McPhail refused to submit to a chemical test.

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