No. ED 76011 | Mo. Ct. App. | Feb 29, 2000
The Director of Revenue (Director) appeals from the judgment reinstating the driving privileges of Stephen K. Prozorow-ski.
On July 10, 1998, Officer Morris of the Town and Country Police Department arrested Prozorowski for driving while intoxicated. Prozorowski also consented to a breathalyzer test, which showed he had a blood alcohol content of .162 percent. Due to his arrest, Director suspended his driving privileges pursuant to Section 302.505, RSMo Cum Supp.1999. Prozorowski filed a petition for de novo review in St. Louis County circuit court.
At trial, Director submitted the case on the Department of Revenue records. These records included the Alcohol Influence Report prepared by Morris and were certified by the custodian of records for
On appeal, Director contends the trial court erred in setting aside Prozorowski’s suspension because its decision that there was no evidence that Prozorowski had been driving or operating the motor vehicle is against the weight of the evidence and further, the trial court misinterpreted and misapplied the law in reaching its conclusion. We note that Prozorowski has not filed a brief responding to Director’s appeal.
The 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. Murphy v. Carrón, 536 S.W.2d 30, 32 (Mo. banc 1976).
At the trial de novo, Director had the burden of showing by a preponderance of the evidence that: (1) the arresting officer had probable cause to arrest Prozo-rowski for driving while intoxicated; and (2)his BAC was at least .10 percent at the time of his arrest. Whitworth v. Director of Revenue, 953 S.W.2d 142" court="Mo. Ct. App." date_filed="1997-09-23" href="https://app.midpage.ai/document/whitworth-v-director-of-revenue-state-of-missouri-1518746?utm_source=webapp" opinion_id="1518746">953 S.W.2d 142, 143 (Mo.App. E.D.1997). When the Director makes a prima facie case, the burden then shifts to the driver to present evidence to rebut the prima facie case by a preponderance of the evidence. Green v. Director of Revenue, 961 S.W.2d 936" court="Mo. Ct. App." date_filed="1998-02-17" href="https://app.midpage.ai/document/green-v-director-of-revenue-state-of-mo-1760624?utm_source=webapp" opinion_id="1760624">961 S.W.2d 936, 938 (Mo.App. E.D.1998).
There is no dispute that Prozorow-ski had a BAC of .10 percent or more by weight. The dispute at trial centered on whether the arresting officer had probable cause to arrest Prozorowski for driving while intoxicated when the Alcohol Influence Report indicates the arresting officer relied upon the statements of another police officer who observed Prozorowski driving. In the narrative portion of the report, Officer Morris stated:
On this date I was requested to assist Cpl Wolfe 62 on traffic WBI64/W of 1270. Upon arrival Cpl Wolfe stated he observed the suspect vehicle stop on the shoulder of 164. The driver exited the vehicle and urinated by his right front tire, exposing his genitalia to passing traffic. Cpl Wolfe contacted the driver who stated he was just checking his tire. Cpl Wolfe stated there was a strong smell of an intoxicating beverage on his breath and asked me to conduct field sobriety tests. Based on my observations of Prozorowski’s physical condition and the results of the field sobriety tests I placed him under arrest for DWI.
Morris specifically listed on his report that Wolfe saw Prozorowski driving the motor vehicle. Morris also noted on the report that he observed a strong odor of alcohol on his breath, his eyes were bloodshot and his pupils dilated. He was also swaying and slurred his speech.
The case at hand is virtually indistinguishable from the recent case of McCabe v. Director of Revenue, 7 S.W.3d 12" court="Mo. Ct. App." date_filed="1999-10-05" href="https://app.midpage.ai/document/mccabe-v-director-of-revenue-1870419?utm_source=webapp" opinion_id="1870419">7 S.W.3d 12 (Mo.App. E.D.1999). In McCabe, an off-duty officer observed McCabe driving his vehicle and swerving back and forth across the center lane, but the arresting officer did not see these actions. Id., at 13. At trial, the Director offered the Alcohol Influence Report prepared by the arresting officer and containing the off-duty officer’s observations as relayed to the arresting officer. Id., at 13-14. McCabe
Relying on McCabe, we find the evidence provided in the Alcohol Influence Report was sufficient to establish the State’s burden that the arresting officer had probable cause to arrest Prozorowski for driving while intoxicated. See also, Pendergrass v. Director of Revenue, 4 S.W.3d 599" court="Mo. Ct. App." date_filed="1999-10-12" href="https://app.midpage.ai/document/pendergrass-v-director-of-revenue-2278691?utm_source=webapp" opinion_id="2278691">4 S.W.3d 599 (Mo.App. E.D.1999). Prozo-rowski offered no evidence to rebut this. In addition, there can be no issue of credibility where no one testified at the trial. While we give great deference to a trial judge’s determination regarding the credibility of witnesses, in cases submitted solely upon a written record, no such deference is warranted. Director of Revenue v. Christman, 968 S.W.2d 737" court="Mo. Ct. App." date_filed="1998-05-05" href="https://app.midpage.ai/document/director-of-revenue-v-christman-5095064?utm_source=webapp" opinion_id="5095064">968 S.W.2d 737, 739 (Mo.App. E.D.1998). Therefore, the trial court’s finding that the arresting officer did not have probable cause to arrest Prozorowski for driving while intoxicated is against the weight of the evidence and is not supported by substantial evidence.
The judgment is reversed and remanded with directions to reinstate the Director’s suspension of Prozorowski’s driving privileges.
. The notice of appeal spells Respondent's last name as Prozopowski, with a "p.” However, the judgment and all of the underlying documents spell his name as Prozorowski, with an "r." Therefore, we use that spelling.