Thomas J. TESON, Respondent, v. DIRECTOR OF REVENUE, STATE OF MISSOURI, Appellant.
No. 78991
Supreme Court of Missouri, En Banc.
Dec. 17, 1996.
937 S.W.2d 195
Timothy J. Melenbrink, Union, for respondent.
ROBERTSON, Judge.
Section
We hold that section
I.
By agreement of the parties, the facts are taken entirely from the arresting officer‘s report and certified records of the Department of Revenue pertaining to this case.
At 1:46 p.m. on July 15, 1995, Washington, Missouri, Police Officer Mike Stapp stopped a pick-up truck he had seen weaving back and forth across the roadway. He approached the driver, Thomas Teson, and smelled a strong odor of alcohol on Teson‘s breath. Officer Stapp performed field sobriety tests that revealed Teson‘s slurred speech, uncertain gait, his inability to touch his fingertips to his thumb, his dilated pupils, his bloodshot eyes, and the presence of nystagmus in each eye. Not surprisingly, Teson admitted to drinking four or five beers earlier in the evening.
On the basis of these observations, Officer Stapp arrested Teson and took him to the Washington police station. There, Officer Stapp asked Teson to take a breathalyzer test. Teson refused. Officer Stapp read Teson the implied consent form warnings from Department of Revenue Form 2389:
You are under arrest for driving while intoxicated. To determine the alcohol-drug content of your blood, I am requesting you submit to a chemical test of your breath. If you refuse to take the test, I must file this sworn affidavit to the Director of Revenue who shall revoke your driver‘s license for one year. Evidence of your refusal to take the test may be used against you in prosecution in a court of law. Having been informed of the reasons for requesting the test, will you take the test?
Teson refused to take the test. According to the police report, Officer Stapp read the statement to Teson two more times over an approximately thirty-minute period. Each time Teson refused to submit to the chemical test. In addition to the form warning, Officer Stapp asked Teson “if he understood that he would lose his license if he didn‘t take the test.” Moreover, Department of Revenue Form 2389 requires Officer Stapp to affirm that he informed “the arrested person that ... his/her driver‘s license shall be revoked for one year upon his/her refusal to take the test.” Officer Stapp filed the report showing Teson‘s refusal with the Director of Revenue.
In due course, Teson received notice from the Director that she had revoked his driving privilege. Teson filed a petition for review of the Director‘s order revoking his driving privilege, claiming that the revocation was arbitrary and capricious because, among other reasons, the arresting officer “never informed Plaintiff [Teson] that Plaintiff‘s license may be revoked upon Plaintiff‘s refusal to take said [chemical] test.” (Emphasis added.)1 The trial court read Logan
v. Director of Revenue, 906 S.W.2d 888 (Mo.App.1995)2 to hold that failure of law enforcement personnel to use the word “immediately” in warning an arrestee of the consequences of refusal to submit to a chemical test renders the refusal nonconsensual. Expressing disagreement with Logan, the trial court nevertheless “reluctantly” granted Teson‘s petition for review and enjoined the Director from revoking Teson‘s license.
The Director appealed. The Court of Appeals, Eastern District, adopted a substantial compliance test, found the warning given sufficient, reversed the judgment of the trial court and certified the case to this Court on the basis of the conflict between its decision and the western district‘s decision in Logan. We have jurisdiction,3 reverse the trial court, and overrule Logan as wrongly decided.
II.
As previously noted, section
This case does not turn on the failure of Officer Stapp to mimic the statute with exact precision. No court has so held. Indeed, Logan held that an arresting officer “need not use the exact wording of the statute,” but could use “any language which clearly conveys the message that the motorist‘s license shall be immediately revoked upon refusal to take the test.”4 Instead, Teson complains that failure to use the word “immediately” or some equally striking synonym left Teson uncertain as to his fate should he refuse the test.
The purpose of the warning provided in section
Prior to 1993, section
In this case, Officer Stapp‘s warning tracked the 1993 amendment with the exception of using the word “immediately.” Officer Stapp warned Teson three times that the Director “shall revoke your license” if Teson refused the test. In addition, Stapp departed from the Department of Revenue‘s forms to ask Teson “if he understood that he would lose his license if he didn‘t take the test.” In each instance, Officer Stapp spoke of the certainty of Teson‘s loss of license. He did not provide any information that could mislead Teson.
Teson argues, however, that the statute is clear and unambiguous and requires no construction. He is correct. He contends that the omission of “immediately” from the warning did not give him all of the information that the 1993 amendment to section
While it is true, as Teson argues, that the warning he received violated the technical command of the statute, we are unable to perceive any prejudice that resulted from omission of the word “immediately.” From the uncontroverted facts, we know that Teson learned from the warnings that his license would be revoked. Those warnings contained no equivocation or ambiguity. Instead, Officer Stapp‘s words guaranteed a certain loss of the driving privilege upon refusal to submit to the chemical test. That Teson was not told that loss would occur in the next instant is of little moment when one considers the certainty of the loss Officer Stapp promised with his words. There is simply no basis for any claim by Teson that the consequences of his decision to refuse the chemical test remained a mystery to him after Officer Stapp read him the warning.
We reject Teson‘s technical compliance argument and hold that the trial court erred in sustaining the petition for review and enjoining the Director from revoking Teson‘s driving privilege. In adopting an actual prejudice standard, we necessarily reject the western district‘s holding in Logan that technical compliance with the statute is the test by which courts must measure the efficacy of warnings to drunk driving arrestees who refuse to submit to a chemical test. Logan v. Director of Revenue, 906 S.W.2d 888 (Mo.App.1995), is overruled.
III.
The judgment of the trial court is reversed and the cause remanded for entry of orders denying respondent‘s petition for review and dissolving the injunction that previously forbad the Director of Revenue from revoking respondent‘s driving privilege.
HOLSTEIN, C.J., and BENTON, PRICE, COVINGTON and WHITE, JJ., concur.
LIMBAUGH, J., concurs in result in separate opinion filed.
LIMBAUGH, Judge, concurring in result.
I write separately to express my disagreement with the rationale stated by the majority, to offer an alternative rationale based on my reading of
To be sure, the arresting officer‘s warning set out in
Read as a whole, the statute is internally inconsistent. Although the arresting officer is required to inform an arrestee that the revocation shall be made “immediately” upon refusal to take the test, that revocation is not immediate, and instead, the arrestee is issued a 15-day temporary permit. Had the arresting officer in this case used the word “immediately” in his warning, he would have misrepresented the true consequences set out in the statute. Furthermore, to have used the word “immediately” in the warning would have rendered the statute an absurdity. In my view, the qualifying terms of the statute effectively delete the word “immediately.” Accordingly, it was not impermissible for the arresting officer himself to omit the word “immediately” from the warning because the warning as given was accurate.
The majority not only disregards the other provisions of
As stated, in my view, it was not error for the arresting officer to omit the word “immediately” from the warning given to the arrestee; and therefore, I would reverse the judgment of the trial court solely on that ground.