In the Missouri Court of Appeals
Eastern District
DIVISION ONE
GEORGE A VARGO, ) No. ED100756
)
Respondent, )
) Appeal from the Circuit Court of
vs. ) St. Charles County
)
DIRECTOR OF REVENUE, ) Hon. William E. Alberty
)
Appellant. ) FILED: December 2, 2014
The Director of Revenue appeals the trial court’s judgment reinstating George
Vargo’s driving privileges after they were revoked due to Vargo’s refusal to submit to a
breathalyzer. We reverse and remand to restore the revocation.
Background
On December 1, 2012, in St. Charles County, Trooper Jordan Hilliard followed a
pick-up truck driven by Mr. Vargo for approximately two and a half miles before pulling
him over for expired license plate tags. The tags had expired the previous day (November
30). Once stopped, Trooper Hilliard asked Vargo if he had had anything to drink that
evening. Vargo replied that he had had “a couple beers” while out to dinner with his
wife, who was in the passenger seat. Hilliard asked Vargo to exit the vehicle and asked
Vargo to complete various field sobriety tests, after which Hilliard concluded that Vargo
was intoxicated. Hilliard then transported Vargo to the St. Charles County jail to undergo
a breath test.
As Hilliard prepared the breathalyzer machine in a holding room, Vargo noticed a
sign warning against use of the machine in the presence of active radios or electronics.
Meanwhile Hilliard was struggling to operate the machine, her laptop was on, and her
radio was receiving transmissions. Vargo stated that he didn’t feel comfortable with
Hilliard operating the machine under such conditions, so he declined to submit to the
breathalyzer and offered to provide a blood sample instead. Hilliard rejected Vargo’s
proposal and had him sign a form acknowledging his refusal to submit to the breath test.
Pursuant to §577.041, the Director administratively revoked Vargo’s driver’s
license for refusing the test. Vargo filed a petition for judicial review, and the court held
a hearing at which Vargo adduced the only evidence, consisting of the alcohol influence
report, accompanying narrative, Vargo’s driving record, the refusal form, and his own
testimony. Vargo testified that Hilliard’s alcohol influence report was unfair or incorrect
in various respects. For example, Vargo was forced to perform the one-leg stand for
nearly a minute on a leg that had undergone surgery; Hilliard reported that Vargo drank
three glasses of wine rather than “a couple beers,” and Hilliard reported that Vargo
stumbled on a grassy slope though the shoulder was paved and flat. Hilliard did not
appear or testify.
The trial court ruled in Vargo’s favor and reinstated his driving privileges, finding
that Vargo did not refuse to submit to a test in that he distrusted the breathalyzer and
requested a blood test instead but was denied that option. The Director appeals, asserting
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that the trial court legally erred in that Vargo’s conduct constitutes a refusal under
applicable precedent.
Standard of Review
The trial 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.” White v. Director of Revenue, 321 S.W.3d 298, 307–08 (Mo. 2010). Claimed
error in applying the law is reviewed de novo. Id. The Director asserts an error of law,
so our review is de novo.
Analysis
Section 577.041 was adopted “to establish a fixed standard for procuring
admissible evidence of blood alcohol for use against persons operating automobiles while
intoxicated.” Hinnah v. Dir. of Revenue, 77 S.W.3d 616, 619 (Mo. 2002). Under the
statute, any person who drives on the public highways is deemed to have consented to a
chemical test to determine the alcohol or drug content of the person's blood. Id. A person
may refuse chemical analysis of his blood alcohol level, but if the arresting officer has
reasonable grounds to believe that the person was driving while intoxicated, then the
director will revoke that person’s license for one year. Id. at 620. Upon judicial review of
the revocation, the director bears the burden of proof, and the issues are limited to: (1)
whether the person was arrested; (2) whether the officer had reasonable grounds to
believe that the person was driving while intoxicated; and (3) whether the person refused
to submit to the test. Id. citing §577.041.4. The inquiry ends once these three questions
have been answered. Id.
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In the present case, the trial court found, in check-the-box format, that: (1) Vargo
was arrested, (2) Trooper Hilliard had reasonable grounds to believe that Vargo was
driving while intoxicated, but (3) Vargo did not refuse the test in that he “felt [that the]
machine (BA) [was] not working properly and request[ed] a blood test, which was
refused.”
The Director asserts that the trial court legally erred in that, under Missouri case
law, Vargo’s conduct constitutes a refusal. The Director’s characterization is correct. In
Fischbeck v. Director of Revenue, 91 S.W.3d 699 (Mo. App. E.D.), the driver refused to
submit to a breathalyzer test after overhearing the arresting officer say that the machine
wasn’t working properly. Id. at 701. Fischbeck testified that he would have consented to
the test had the machine been functional. Id. This court held that Fischbeck’s decision
qualified as a refusal regardless of his justification. Id. Furthermore, established
Missouri precedent instructs that a driver’s offer to take a blood test does not negate his
refusal to take a breath test. State v. Brown, 804 S.W.2d 396, 398 (Mo. App. W.D.
1991). The initial refusal will support administrative revocation unless law enforcement
decides to exercise its discretion to allow the driver to consent to the same or a different
type of test following the initial refusal. Rothwell v. Director of Revenue, 419 S.W.3d
200, 209 (Mo. App. W.D. 2013). The arresting officer is not obligated to accept the
driver’s offer to take a blood test. McGuire v. Jackson County Prosecuting Attorney, 548
S.W.2d 272, 276 (Mo. App. 1977). The initial refusal to take the breath test is sufficient
to revoke the driver’s license. Id.
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Bound by the foregoing authorities, we must reverse the trial court’s judgment
and remand the case for reinstatement of the Director’s revocation of Vargo’s license.
____________________________________
CLIFFORD H. AHRENS, Judge
Lawrence E. Mooney, P. J., concurs
Glenn A. Norton, J., concurs.
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