Kyle Hummel, Appellant, v. Director of Revenue, Respondent.Kyle Hummel, Appellant, v. Director of Revenue, Respondent.
Kyle Hummel (Appellant) appeals from the trial court‘s judgment sustaining the Director of Revenue‘s (Director) revocation of Appellant‘s driving privileges for one year. We affirm.
On April 20, 2019, at 8:39 p.m., Sergeant Scott Miller (Sergeant Miller) of the Missouri State Highway Patrol stopped Appellant for driving 75 miles per hour in a 60-mile-per-hour zone. When Sergeant Miller approached the vehicle he observed Appellant‘s eyes were watery and glassy, and he smelled faintly of alcohol. Appellant admitted to drinking two or three beers.
Sergeant Miller administered a series of field sobriety tests to determine whether Appellant was fit to drive. First was the horizontal gaze nystagmus test, where Sergeant Miller observed all six possible clues.1 Next, he administered the one leg stand test and observed three clues. Sergeant Miller conducted two other non-standardized field sobriety tests and then arrested Appellant for driving while intoxicated.
Sergeant Miller took Appellant into custody, placed him in the patrol car, and advised him of the Missouri implied consent law.2 He then asked Appellant to submit to a chemical test of his breath. Appellant requested to speak with an attorney. Sergeant Miller permitted Appellant to make a few calls, including one to an attorney; however, he remained inside the vehicle during the conversation. Neither Appellant nor counsel requested privacy. Sergeant Miller could hear Appellant, but could not discern anything said by the attorney. A device inside the patrol car recorded audio and video of the call. Pursuant to standard operating procedure, these recordings were forwarded to the prosecuting attorney, but there is no evidence in the record that they were used against Appellant. After Appellant consulted with the attorney, he refused to submit to the chemical test.
The Director notified Appellant his driving privileges were revoked for one year pursuant to
This appeal follows.
DISCUSSION
In his sole point on appeal, Appellant argues the trial court erred in sustaining the Director‘s revocation of his driving privileges by finding that he voluntarily and unequivocally refused to provide a sample of his breath to determine his blood alcohol content. He claims his refusal was not voluntary and unequivocal because he was deprived of his statutory right to counsel when he was not afforded a private consultation with his attorney.
Standard of Review
In an appeal from a court-tried civil case, the trial court‘s judgment 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) (citing Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976)). Appellate
Analysis
When a driver has been arrested for driving while intoxicated, the timely completion of a valid chemical test to determine the driver‘s blood alcohol content is imperative. Rogers v. Dir. of Revenue, 184 S.W.3d 137, 144 (Mo. App. W.D. 2006). The state‘s interest is to avoid unnecessary delay before the chemical test is administered because alcohol is water soluble and the human body endeavors to remove it from the blood. Wall v. Holman, 902 S.W.2d 329, 331 (Mo. App. W.D. 1995). Accordingly, rather than require that every individual be taken back to a police station for chemical breath tests, officers are authorized to conduct chemical breath tests directly from their patrol cars. See 19 C.S.R. 25-30.050(2); see also Baker v. Dir. of Revenue, 569 S.W.3d 63, 67 (Mo. App. W.D. 2019).
A driver has the option to refuse to submit to chemical testing, but upon doing so, his or her driving privileges are subject to an administrative revocation by the Director pursuant to
Appellant relies on Roesing for the proposition that his refusal to submit to chemical testing was not voluntary and unequivocal because his conversation with counsel was not private. In Roesing, 573 S.W.3d at 636, a driver was arrested for driving while intoxicated and taken to the police station for a chemical test. Id. At the station, the driver was able to contact an attorney within the 20-minute time frame required by
Appellant‘s reliance on Roesing is misplaced. Roesing dealt with a driver speaking with an attorney in a police station, not a patrol car. At a police station, an officer is subject to the “private room” requirement of
In conclusion, the facts in this situation do not merit an expansion of Roesing to drivers being held in patrol cars who do not request privacy when speaking with an attorney. Accordingly, the trial court did not err in sustaining the Director‘s revocation of Appellant‘s driving privileges for one year. Appellant‘s point is denied.
CONCLUSION
The trial court‘s judgment is affirmed.
Lisa P. Page, Judge
Robin Ransom, P.J. and Sherri B. Sullivan, J., concur.