# West v. DIRECTOR OF REVENUE, STATE

> Missouri Court of Appeals · November 17, 2009 · 297 S.W.3d 648

URL: https://www.frixlaw.com/law-library/cases/9730068

## Case

- **Full name:** Bradley Dewayne WEST, Petitioner-Respondent, v. DIRECTOR OF REVENUE, STATE of Missouri, Respondent-Appellant
- **Court:** Missouri Court of Appeals
- **Decided:** November 17, 2009
- **Citations:** 297 S.W.3d 648; 2009 Mo. App. LEXIS 1622
- **Precedential status:** Published
- **Opinion:** Concurrence by Scott
- **Judges:** Nancy Steffen Rahmeyer
- **Cited by:** 9 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9730068

## Opinion text

DANIEL E. SCOTT, Chief Judge,
concurring in part and in result.
I agree that the trial court misapplied the law. A driver’s lack of understanding not made apparent to the officer “is of no consequence.” Spradling v. Deimeke, 528 S.W.2d 759, 766 (Mo.1975); Laney v. Dir. of Revenue, 144 S.W.3d 350, 354 (Mo.App.2004); Baldridge v. Dir. of Revenue, 82 S.W.3d 212, 222 (Mo.App.2002). As this court has noted:
A driver who has been advised of his rights under the Implied Consent Law, but declines to take the test, is deemed to have refused the test unless he objectively and unequivocally shows he does not understand his rights and the warning concerning the consequences of refusal and, thereafter, he was denied clarification. A lack of understanding not made apparent to the officer is of no consequence, [citation and quotation marks omitted].
Gonzalez v. Dir. of Revenue, 107 S.W.3d 491, 494 (Mo.App.2003).
Refusal is determined by an objective test; there is no requirement that the refusal be knowing. Fick v. Dir. of Revenue, 240 S.W.3d 688, 691 (Mo. banc 2007). Rarely should courts evaluate a refusal post hoc. 5 “Rather, we are concerned only with whether [the driver] refused to take the test and, in the event he did not understand his rights and the warning concerning the consequences of refusal, whether *656 [he] clearly and unequivocally communicated his lack of understanding” to the officer. Gonzalez, 107 S.W.3d at 494 .
In Fischbeck v. Dir. of Revenue, 91 S.W.3d 699 (Mo.App.2002), the driver argued that non-medical factors “affected his decisional process and diminished his ability to make an informed choice as to whether to submit to the test.” Id. at 702 . The trial court agreed, but the Eastern District reversed:
If Driver was confused or did not understand his rights based upon the functioning of the breathalyzer, he should have expressed his confusion to the officer. A driver who has been advised of his rights under the Implied Consent Law, but declines to take the test, is deemed to have refused the test unless he objectively and unequivocally shows he does not understand his rights and the warning concerning the consequences of refusal and, thereafter, he was denied clarification. Spradling v. Deimeke, 528 S.W.2d 759, 766 (Mo.1975); Duffy v. Dir. of Revenue, 966 S.W.2d 372, 382 (Mo.App.1998).
“A lack of understanding not made apparent to the officer is of no consequence.” Spradling, 528 S.W.2d at 766 ; Duffy, 966 S.W.2d at 382 .
Id. We repeated these quoted statements in Gonzalez, 107 S.W.3d at 494 .
The officer here was “entitled to take a refusal at face value without being required to determine the person’s mental capacity to make such decision.” Cartwright v. Dir. of Revenue, 824 S.W.2d 38, 41 (Mo.App.1991). I would reverse on this ground alone, without discussing the Director’s arguments about the sufficiency or weight of the evidence. I think the case law on those issues is not wholly consistent in refusal cases, and whatever we say here on those matters may be dicta.
. I find no indication of record that Respondent "had been unconscious at the time the implied consent law was read” or otherwise while the investigating officer was at the hospital. See Brown v. Dir. of Revenue, 164 S.W.3d 121, 127 (Mo.App.2005), which distinguishes Nace v. Dir. of Revenue, 123 S.W.3d 252 (Mo.App.2003) on that basis. Indeed, post -Nace cases uniformly have declined to follow that decision. See Beach v. Dir. of Revenue, 188 S.W.3d 492, 496 (Mo.App.2006); Rogers v. Dir. of Revenue, 184 S.W.3d 137 , 143 n. 6 (Mo.App.2006); Brown, 164 S.W.3d at 127 .

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9730068. Public record. Not legal advice.