386 S.W.3d 858
Mo. Ct. App.2012Background
- Green was issued a driving-privilege revocation notice on July 24, 2011 for refusal of a chemical test after arrest for intoxicated motorcycle operation.
- Trooper Dunfee stopped Green for speeding on I-29 in Clay County; Green exhibited signs of intoxication and failed field sobriety tests.
- Green was informed of the implied-consent law and given an opportunity to contact an attorney; he provided a contact and spoke to someone during a twenty-minute window.
- After the telephone call, Green was asked to submit to a chemical test; he replied, 'I’m not sure,' then, fifteen minutes later, answered 'no' to testing.
- The Alcohol Influence Report and trooper testimony supported that Green spoke with an attorney; Green’s unequivocal refusal followed the phone call.
- The circuit court upheld the revocation; Green contends his refusal cannot justify revocation because he validly attempted to consult counsel.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Green abandoned his attorney contact before refusing the test | Green argues he requested counsel and should be deemed not to have refused. | Division argues Green fully availed himself of the twenty-minute period and abandoned only after weighing his options. | Green abandoned his attorney-contact efforts before refusing; revocation proper. |
| Whether § 577.041.1 requires automatic twenty-minute wait if counsel contacted | Green claims a statutory right to twenty minutes was not satisfied. | Division contends the twenty-minute period is not mandatory if abandonment occurs earlier. | Twenty minutes may be truncated upon abandonment; not required to wait full period. |
| Whether the evidence supports revocation under § 577.041.3 | If no valid refusal occurred, revocation would be improper. | If abandonment is proven, revocation is required. | The evidence supports abandonment and thus revocation. |
Key Cases Cited
- Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976) (standard of review for civil appeals)
- White v. Dir. of Revenue, 321 S.W.3d 298 (Mo. banc 2010) (weight-of-evidence standard in reviewed judgments)
- Norris v. Dir. of Revenue, 304 S.W.3d 724 (Mo. banc 2010) (abandonment when attorney contact attempted but not completed)
- Bacandreas v. Dir. of Revenue, 99 S.W.3d 497 (Mo. App. E.D. 2003) (twenty-minute opportunity to contact attorney; abandonment concept)
- Mount v. Dir. of Revenue, 62 S.W.3d 597 (Mo. App. W.D. 2001) (definition of abandonment in twenty-minute period)
- McMaster v. Lohman, 941 S.W.2d 813 (Mo. App. W.D. 1997) (abandonment when driver ceases attempts during the period)
- Snider v. Dir. of Revenue, 314 S.W.3d 841 (Mo. App. S.D. 2010) (abandonment based on attempts and direct refusal)
- Wall v. Holman, 902 S.W.2d 329 (Mo. App. W.D. 1995) (abandonment proven by conduct after attempts)
- Krakover v. Dir. of Revenue, 128 S.W.3d 589 (Mo. App. E.D. 2004) (limits on mandatory waiting period; abandonment context)
- Keim v. Director of Revenue, 86 S.W.3d 177 (Mo. App. E.D. 2002) (evidence sufficiency to show abandonment; officer testimony vs. report)