Hinnah v. Director of Revenue

STEPHEN N. LIMBAUGH, JR., Chief Justice,

dissenting.

I cannot fathom how the commissioner found that the officer did not have reasonable grounds to believe that Respondent Hinnah was driving a motor vehicle in an intoxicated condition. As the majority correctly notes, probable cause, or reasonable grounds, depends on the information in the officer’s possession at the time of the arrest, not on information acquired after the fact, see Hawkins v. Director of Revenue, *623 7 S.W.3d 549, 551-52 (Mo.App.1999); Wilcox v. Director of Revenue, 842 S.W.2d 240, 243 (Mo.App.1992), which is what seems to be driving the resolution of this case. It is uncontroverted that in the early night-time hours of New Year’s Day, Hinnah was found alone and asleep in a pick-up (albeit in the passenger seat) that was parked on the shoulder of the road with the engine running. One of the front tires was flat and the wheel rim was damaged. Hinnah told the officer that he had fallen asleep while driving and struck a concrete barrier. The officer smelled a strong odor of alcohol on Hinnah’s breath and saw that his eyes were watery, glassy and bloodshot.

Although appellate courts defer to the trial court’s determination of credibility, there is no need for such deference if the evidence is uncontroverted. Hampton v. Director of Revenue, 22 S.W.3d 217, 220 (Mo.App.2000). Because the uncontrovert-ed testimony of the officer that Hinnah admitted that he was driving is alone sufficient to constitute reasonable grounds that Hinnah was indeed driving, see Pendergrass v. Director of Revenue, 4 S.W.3d 599, 601 (Mo.App.1999), the majority focuses instead on the purportedly contested and controverted evidence of intoxication. The evidence of lack of reasonable grounds was presented almost entirely through the cross-examination testimony of the officer, as Hinnah, himself, did not testify. The points made on cross-examination are in the nature of mere inconsistencies that do not effectively rebut what the majority agrees is prima facie proof of reasonable grounds to believe that Hinnah was intoxicated. See Phelps v. Director of Revenue, 47 S.W.3d 395, 401-02 (Mo.App.2001). In particular, the points made were 1) that the officer could not determine the “number, recency, quantity or quality” of the alcohol he smelled on Hinnah’s breath, 2) that he could not determine solely from the odor of alcohol whether Hinnah was intoxicated, 3) that he could not determine solely from Hinnah’s bloodshot eyes whether Hinnah was intoxicated, 4) that Hinnah did not have slurred speech, and 5) that Hinnah’s instability in exiting the pick-up might have been due to the fact that he had just awakened and needed time to balance himself. None of these points controverts the evidence that Hin-nah had alcohol on his breath and that his eyes were watery, glassy and bloodshot. Although the officer conceded that neither the smell of alcohol nor the appearance of Hinnah’s eyes was alone sufficient to determine that Hinnah was intoxicated, those factors, when combined with the other circumstances surrounding the arrest — that there had been an accident and that Hin-nah had fallen asleep with the engine running — were more than enough to establish reasonable grounds that Hinnah was intoxicated. Had Hinnah truly wished to controvert the director’s case, he would have testified himself, and his failure to do so may properly be weighed against him. See State Farm Mutual Automobile Insurance Company v. Allen, 744 S.W.2d 782, 787 (Mo. banc 1988).

In sum, I agree with the majority that the director made a prima facie case that the officer had reasonable grounds to believe that Hinnah was driving while intoxicated, but I would hold that the evidence to that effect was uncontroverted, and that the commissioner’s finding of no probable cause was not supported by the evidence.