382 S.W.3d 119
Mo. Ct. App.2012Background
- Officer pulled McKay over for speeding and detained her for suspected DWI after field sobriety tests.
- After 15-minute observation, McKay refused an on-site breath test following the Implied Consent Warning.
- Officer advised that McKay would be taken to a hospital for a blood test; McKay requested an attorney and attempted to contact one.
- McKay later voluntarily submitted to blood testing at the hospital without a warrant; two vials of blood were drawn for BAC testing.
- Director issued two notices of revocation: for breath-test refusal and for BAC exceeding legal limits; trial court set aside the revocation.
- Director appeals, challenging whether the later voluntary blood test sustains revocation for initial breath-test refusal under § 577.041.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does later voluntary blood testing defeat a breath-test refusal revocation? | McKay’s BAC testing was voluntary; coercive basis for revocation fails. | Director argues refusal stands; blood test results do not negate the initial refusal. | No; revocation invalid where voluntariness obtained BAC evidence. |
| Is the blood test obtained without a warrant permissible under the implied consent framework? | Consent to warrantless blood testing fulfilled statutory purpose. | Voluntary blood test does not negate refusal basis for revocation. | Permissible when consent is voluntary and without a warrant. |
| Does this case align with Kimbrell’s rule on changing mind after initial refusal? | McKay changed mind and consented to test; officer administered test. | Officer could have refused; cannot revoke for initial refusal. | Aligned with Kimbrell; measured by completion of voluntary test. |
Key Cases Cited
- Kimbrell v. Dir. of Revenue, 192 S.W.3d 712 (Mo.App. W.D.2006) (once driver changes mind and requests test, test may be administered; revocation for initial refusal not permitted when test results are obtained)
- Bender v. Director of Revenue, 320 S.W.3d 167 (Mo.App. E.D.2010) (blood cannot be obtained under implied consent via warrant when not consented; distinction between implied consent testing and warrant-based testing)
- Smock v. Director of Revenue, 128 S.W.3d 643 (Mo.App. S.D.2004) (voluntary breath test followed by refusal to take subsequent test; focus on second test legality)
- Snow v. Director of Revenue, 935 S.W.2d 383 (Mo.App. S.D.1996) (similar sequence of events with voluntary test and subsequent testing questions)
- Moody v. Dir. of Revenue, 14 S.W.3d 729 (Mo.App. E.D.2000) (initial refusal followed by later offer does not alter earlier refusal under older statute)
- Phillips v. Wilson, 66 S.W.3d 176 (Mo.App. W.D.2002) (reflects interpretation of refusal and subsequent testing under implied consent)
- Blanchard v. Dir. of Revenue, 844 S.W.2d 589 (Mo.App. E.D.1993) (earlier treatment of refusal and testing under implied consent)
- Sparling v. Dir. of Revenue, 52 S.W.3d 11 (Mo.App. E.D.2001) (license revocation procedures under implied consent)
- State v. McNeely, 358 S.W.3d 65 (Mo. banc 2012) (exigency standard for warrantless blood draws in DWI cases)