James T. LOGAN, Appellant, v. DIRECTOR OF REVENUE, Respondent.
No. WD 49789.
Missouri Court of Appeals, Western District.
Sept. 5, 1995.
Motion for Rehearing and/or Transfer to Supreme Court Denied Oct. 3, 1995.
Application to Transfer Denied Oct. 24, 1995.
It follows that the trial court erred in accepting Defendant‘s premise that the instant suit is barred by Nevada‘s two-year statute of limitations for wrongful death actions, borrowed by
Defendant‘s loquacious brief advances a number of ingenious arguments in support of the trial court‘s ruling, but all hinge on the premise that the instant suit had to be commenced within two years after Decedent‘s death. Because that notion is meritless, we need not discuss those arguments or the cases cited in their support.
The judgment is reversed and the instant suit is remanded to the trial court for further proceedings.
GARRISON, P.J., and PARRISH, J., concur.
Robert S. Adler, St. Louis, for appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., James A. Chenault, III, Sp. Asst. Atty. Gen., Mo. Dept. of Revenue, Jefferson City, for respondent.
Before ULRICH, P.J. and LOWENSTEIN and ELLIS, JJ.
ELLIS, Judge.
James T. Logan‘s driver‘s license was revoked for one year for failure to submit to a chemical test for his blood alcohol content pursuant to
The sole issue on appeal is whether the arresting officer provided Logan with the information the legislature has declared to be necessary to enable a person to make an informed decision whether to take the test.
The request of the arresting officer shall include the reasons of the officer for requesting the person to submit to a test and also shall inform the person that evidence of his refusal to take the test may be used against him and that his license shall be immediately revoked upon his refusal to take the test. . . . [Upon a refusal,] the arresting officer shall, on behalf of the director of revenue, serve the notice of license revocation personally upon the arrested person and shall take possession of any license to operate a motor vehicle issued by this state which is held by the person.
(Emphasis added).
In the case at bar, the arresting officer informed Dr. Logan that if he refused the test, “I [the arresting officer] must file a sworn affidavit with the Director of Revenue who shall revoke your driver‘s license for one year.” The officer did not advise Logan when his license would be revoked for one year, but merely indicated that at some fu
In Bennett v. Director of Revenue, 889 S.W.2d 166 (Mo.App.1994), this court held “that the opportunity to exercise intelligent judgment requires that the [motor vehicle] operator be advised of the mandatory effect of a refusal to be tested.” Id. at 170. The mandatory effect of a refusal to submit to a test is that the operator‘s license ”shall be immediately revoked.”
[W]e hold the officer‘s failure to clearly convey to Vinson that his operating privilege would be immediately revoked upon refusal to take the test prevented Vinson from making an informed decision on whether to take it. Therefore, Vinson‘s decision to forgo the test did not constitute a refusal within the meaning of
Sec. 577.041.4(3) .
In Jones v. Schaffner, 509 S.W.2d 72, 77 (Mo.1974), our Supreme Court stated that “[t]he decisive question is . . . whether the statutory warning was given.” Similarly, in Collins v. Director of Revenue, 691 S.W.2d 246, 252 (Mo. banc 1985), the Court held that under
It is, therefore, clear that the mandate of the statute to inform the arrested person of the consequences of a failure to submit to a test must be obeyed for there to be a valid revocation based on such refusal. See generally Jones, 509 S.W.2d at 77 (arresting officer must provide “adequate knowledge of the facts and consequences” of refusal); Winters v. McNeill, 772 S.W.2d 749, 752 (Mo.App.1989);
Sec. 577.041.5 (providing that if the trial court determines any issue inSec. 577.041.4 , including the issue of whether or not the arrestee refused to submit to the test, “not to be in the affirmative, he shall order the director to reinstate the license or permit to drive.“)
Id. at 169-70. Telling Logan that his license would be revoked for one year at some future, unspecified and indeterminate date did
The problem in this case is not that the officer failed to use the words “immediate,” or “immediately.” The officer need not use the exact wording of the statute. Rather, “any language which clearly conveys the message that the motorist‘s license shall be immediately revoked upon refusal to take the test is adequate.” Id. at 171. The difficulty here is that Logan was not given the unequivocal notice that the revocation would occur as soon as he refused the test as dictated by
The dissent suggests that this is a case of form over substance. Not surprisingly, we disagree. The elected representatives of the people have determined what information is to be provided to an arrested person. Section 577.041.1 contains that determination, and obviously was signed into law by the Governor. As noted earlier, our Supreme Court has stated that “[t]he decisive question is . . . whether the statutory warning was given.” Jones v. Schaffner, 509 S.W.2d at 77. When the legislature makes a determination that certain information is to be provided to a citizen, the Governor has approved of the determination by signing the bill into law, and our Supreme Court has said that the decisive question is whether the information is given, we do not perceive the matter to be one merely of form, but rather of substance.
In a larger context, however, perhaps the most troubling part of this case is the position taken by the Director at oral argument that law enforcement officers need not follow the mandate of
Therefore, consistent with the holdings in Bennett and Vinson, the judgment of the trial court is reversed, and the Director is ordered to reinstate Logan‘s license.
ULRICH, P.J., concurs.
LOWENSTEIN, J., dissents in separate dissenting opinion.
LOWENSTEIN, Judge, dissenting.
The result reached here, the reinstatement of the license of a driver who refused to take the test for blood alcohol content, values form over substance. As I see it, the majority‘s decision far extends the envelope of the warning necessary to advise a motorist who is reasonably suspected of driving while impaired of the effect of his or her failure to take the test. The driver in this case knew a revocation of one year would result from his failure to take the test. The appellant driver received sufficient information to understand the impact of his refusal to take the test on his driving privileges. To allow the appellant to escape the effect of the law because “immediate,” or a synonym therefor, was not used, is wrong.
Simply put, the judgment under review is now reversed and driver‘s suspension is averted only because the word “immediate” or a like word was not included in the warning. This is illustrated by the language used by the majority at page
The problem in this case is not that the officer failed to use the words “immediate,” or “immediately.” The officer need not use the exact wording of the statute. Rather, “any language which clearly conveys the message that the motorist‘s license shall be immediately revoked upon refusal to take the test is adequate.” Id. at 171. The difficulty here is that Logan was not given the unequivocal notice that the revocation would occur as soon as he refused the test. (Emphasis added).
Under the opinion adopted today, had the officer told Logan the literal truth under
I share the majority‘s concern as to why the director chose to elect to monkey with the language of the notice statute. That decision, while successful at manufacturing this appeal, should not alter the trial court‘s decision.
The purpose of this law is to get drunk drivers off the road. Section 577.041 “requires only that the officer inform the arrestee of the consequences for refusing to submit to the examination as well as why the test is being administered.” Collins v. Director of Revenue, 691 S.W.2d 246, 252 (Mo. banc 1985). Prior to 1993,
This court in Bennett, and the southern district in Vinson v. Director of Revenue, 892 S.W.2d 330 (Mo.App.1995) have addressed the warning or notice given by the arresting officer. In Bennett, following the 1993 amendments in which the statutory language was changed to its present form, (license shall be immediately revoked upon refusal), the officer‘s warning used the old language that the license “may” or “could” be revoked, and such warning, by not using “the exact words of the statute,” mislead the motorist. Id. at 168 and 170-71 Vinson reached a like result. The officer “explained to him that his driver‘s license might be revoked if he failed to take the test,” and the court held such language failed “to clearly convey [that] . . . his operating privilege would be immediately revoked from making an informed decision on whether to take it.” 892 S.W.2d at 332.
The warning given Logan, that the officer “must file . . . with the Director . . . who shall revoke your drivers license for one year,” while not tracking the statutory language by inserting the word “immediately” in the notice, does not call for a reversal and reinstatement of Logan‘s driving privileges. Although Bennett speaks of the post-1993 statute calling for conveying “. . . the message that upon a refusal, an immediate revocation of the person‘s license will occur,” the message in the case at bar should be held sufficient to convey to the driver that the consequence of his not taking the chemical test would be definite, and the loss of his license for a year would be certain. The warning here substantially comports with the statute. The warning here contrasts with Bennett and Vinson, which gave the driver an impression of hope that his license would not certainly be lost for refusal to take the test. As such, this less than perfect notice should be held to be sufficient in helping the driver to make a decision. Mullen v. Director of Revenue, 891 S.W.2d at 563, held as was further stated on page 171 of Bennett:
However, any language which clearly conveys the message that the motorist‘s license shall be immediately revoked upon refusal to take the test is adequate.
See also, Spradling v. Deimeke, 528 S.W.2d 759, 766 (Mo.1975).
The intent of the legislature to divert drunk drivers from our roads is evident by a whole statutory scheme, of which
I would affirm the judgment.