Wei v. Director of Revenue, 335 S.W.3d 558

Driver Zhouqun Iris Wei was arrested June 7, 2009 for allegedly driving while intoxicated after Trooper Dillon observed weaving and a broken taillight and detected odor of alcohol.
Driver admitted having a single alcoholic drink earlier and submitted to a portable breath test indicating BAC over .080 percent, though no formal breath result was recorded as valid at that stage.
Driver performed field sobriety tests; trooper noted bloodshot, glassy eyes, odor of intoxicants, and Driver’s poor performance on the tests.
Driver was transported to the sheriff’s department where she was asked to submit to a chemical breath test; initial attempt produced an invalid result due to improper blowing, and a second attempt yielded a reading of .081 percent before she stopped providing a sample.
Trooper Dillon deemed the breath test a refusal after Driver’s continued improper efforts; the Director of Revenue revoked Driver’s driving privileges under § 577.041.
The Director submitted its case on the certified record (AIR, narrative, Driver record, and the refusal form), and Driver introduced a videotape of the stop and Dillon’s deposition but did not testify.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Was there substantial evidence of probable cause for intoxication?	Wei contends the AIR and video show no probable cause.	Wei argues inconsistencies in AIR/deposition/videotape undermine substantiality.	No; trial court properly found probable cause based on odor, eyes, and field sobriety results.
Did the trial court err in crediting the Director’s case and in denying Driver’s motion to reconsider?	Wei claims the AIR/deposition rely on false statements and irregular proceedings.	Director argues the trial court properly weighed the evidence and assessed credibility.	No; the trial court’s fact-finding is entitled to deference and not reversible on these grounds.
Was there sufficient evidence Driver refused to submit to a chemical test?	Wei asserts no actual refusal; she complied with testing attempts.	Director argues intentional failure to blow and to provide a valid sample constitutes a refusal.	Yes; Driver willfully failed to provide a proper breath sample, constituting a refusal under § 577.041.
Did Driver have a due process right to confront and cross-examine Trooper Dillon?	Wei claims the written record and lack of live testimony violate due process.	Director maintains statutory record and opportunity to cross-examine via deposition satisfy due process.	No; documentary evidence and available deposition/cross-examination satisfy due process.

White v. Dir. of Revenue, 321 S.W.3d 298 (Mo. banc 2010) (deference to trial court on contested fact findings in § 577.041 review)
Zummo v. Dir. of Revenue, 212 S.W.3d 236 (Mo. Ct. App. 2007) (claims can be proven by documentary evidence; asserted principal facts)
Hursh v. Dir. of Revenue, 272 S.W.3d 914 (Mo. Ct. App. 2009) (definition of refusal under implied consent; volitional failure as refusal)
Tarlton v. Dir. of Revenue, 201 S.W.3d 564 (Mo. Ct. App. 2006) (refusal can be shown by not blowing into the machine; not necessarily express refusal)
Chapman v. McNeil, 740 S.W.2d 701 (Mo. Ct. App. 1987) (breath test refusal standards and admissibility)
Arch v. Dir. of Revenue, 186 S.W.3d 477 (Mo. Ct. App. 2006) (eyes and odor as indicia of intoxication)
Edwards v. Dir. of Revenue, 295 S.W.3d 909 (Mo. Ct. App. 2009) (field sobriety test results as indicia of intoxication)
York v. Dir. of Revenue, 186 S.W.3d 267 (Mo. banc 2006) (probable cause framework for vehicular intoxication inquiries)