In the Missouri Court of Appeals
Eastern District
DIVISION FOUR
JOHN J. JARBOE, ) ED102230
)
Petitioner/Respondent, ) Appeal from the Circuit Court
) of St. Louis County
v. )
)
DIRECTOR OF REVENUE, ) Honorable Thomas J. Prebil
)
Respondent/Appellant. ) Filed: September 1, 2015
Introduction
The Director of Revenue (Director) appeals from the trial court’s judgment reversing the
Director’s administrative revocation and reinstating the driving privileges of John J. Jarboe
(Respondent). We reverse and remand.
Factual and Procedural Background
On December 1, 2011, Officer Richard Frauenfelder (Officer Frauenfelder) and Sergeant
R. Selby (Sergeant Selby) of the St. John Police Department responded to a report of larceny at
the St. John Liquor Store. According to the store clerk, a white male in a camouflage jacket
allegedly stole some beer, left the store in a white pickup truck, and drove down the street to a
Walgreens store. The officers found the truck at Walgreens and traced its ownership to
Respondent. Approximately 20 minutes after the initial dispatch, the officers found Respondent
in a nearby alley. Respondent was staggering, had slurred speech, exhibited bloodshot eyes and
emanated a strong odor of alcohol. Officer Frauenfelder asked Respondent if he drove from the
liquor store to Walgreens, and Respondent replied, “I don’t know.” The officers transported
Respondent to the police station, where he failed a series of sobriety tests and refused to submit
to a breathalyzer.
Pursuant to Section 577.041,1 the Director administratively revoked Respondent’s
driver’s license for refusing the test. Respondent filed a petition for judicial review, and the trial
court held a hearing at which the Director adduced the only evidence, consisting of Officer
Frauenfelder’s alcohol influence report, accompanying narrative, Respondent’s signed refusal,
and his driving record. Respondent did not testify but argued through counsel that there was no
direct evidence as to when or whether Respondent drove in relation to when he consumed
alcohol.
The trial court reinstated Respondent’s driving privileges, finding that (1) Officer
Frauenfelder lacked probable cause to arrest Respondent, (2) Respondent did not refuse to
submit to a breath test, and (3) no admissible evidence of driving while intoxicated was
presented. The Director appealed, asserting the trial court misapplied the law in that Section
577.041, governing license revocation for failure to submit to a breathalyzer, only requires that
an officer have reasonable grounds to believe that a person was driving while intoxicated.
1
Section 577.041 RSMo Supp. 2010 provides in pertinent part:
1. If a person under arrest, or who has been stopped … refuses upon the request of the officer to submit to
[a breathalyzer or blood alcohol content] test allowed pursuant to section 577.020, then evidence of the
refusal shall be admissible in a proceeding … and … [t]he request of the officer shall include the reasons of
the officer for requesting the person to submit to a test and also shall inform the person that evidence of
refusal to take the test may be used against such person and that the person’s license shall be immediately
revoked upon refusal to take the test….
2. The officer shall make a certified report … [which] shall be forwarded to the director of revenue and
shall include the following:
(1) That the officer has:
(a) Reasonable grounds to believe that the arrested person was driving a motor vehicle while in an
intoxicated or drugged condition…
2
This Court reversed the trial court’s judgment, finding that the proper issue for the trial
court to consider was whether Officer Frauenfelder, given the facts and circumstances known to
him at the time, had reasonable grounds to believe Respondent drove while intoxicated, not
whether Respondent actually drove while intoxicated. Jarboe v. Director of Revenue, 434
S.W.3d 96 (Mo.App. E.D. 2014). We determined the trial court’s second and third findings, as
set forth above, cast doubt on whether the trial court actually considered the evidence in the
record to arrive at its conclusions, particularly because Respondent signed a form stating he
refused to take the breathalyzer test, evidence that directly contradicts the trial court’s finding
that he did not so refuse, and there was evidence in the record supporting reasonable suspicion
that the trial court could consider, but its finding that “no admissible evidence of driving while
intoxicated was presented” suggests the trial court did not consider any of the evidence presented
by the Director. Id. at 99.
On remand, the trial court entertained the case again, which was submitted on the record
and argument only. The third-party witness statements contained within the police report were
objected to by Respondent as hearsay and were deemed inadmissible by the trial court. The trial
court specifically found that with regard to Respondent on the night of December 1, 2011, no
temporal connection was made between the driving or operation of a vehicle and his alleged
intoxication. Accordingly, the trial court entered judgment finding that Officer Frauenfelder had
no probable cause to arrest Respondent for driving while intoxicated or any alcohol-related
offense.2 This appeal follows.
2
In its judgment, the trial court noted no findings of fact or conclusions of law were requested by the parties and no
civilian witnesses were subpoenaed to testify as to the operation of a vehicle by Respondent.
3
Point on Appeal
The Director claims the trial court erred as a matter of law in reinstating Respondent’s
driving privileges under Section 577.041 because the court misapplied the law in deeming
witness statements contained in Officer Frauenfelder’s report inadmissible hearsay, in that
Officer Frauenfelder did not observe Respondent driving, but relied upon witness statements to
form a belief that Respondent was driving while intoxicated.
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.banc 2010). Claimed error in
applying the law is reviewed de novo. Id.
Discussion
The Director maintains the question of whether evidence is admissible is separate from
the question of whether evidence is sufficient or credible, and the trial court did not actually
consider the third-party witness statements for the purpose of determining whether there was
probable cause, but simply excluded them from being considered at all. The Director claims that
in doing so, the trial court repeated the error this Court determined was made in the first trial and
mandated rectified on remand. Jarboe, 434 S.W.3d at 99.
We specifically stated in Jarboe that for purposes of Section 577.041, the inquiry is
limited to whether Officer Frauenfelder, given the facts and circumstances known to him at the
time, had reasonable grounds to believe that Respondent drove from the liquor store to
Walgreens while intoxicated. Id. We stated Officer Frauenfelder may rely on information
conveyed by police dispatch and from citizen witnesses in addition to his own observations. Id.,
4
citing Davis v. Director of Revenue, 416 S.W.3d 826, 829-30 (Mo.App. S.D. 2013). We also
stated that Officer Frauenfelder’s report, including his own observations as well as the liquor
store clerk’s statement, warrants the trial court’s consideration under the foregoing standards.
Jarboe, 434 S.W.3d at 99.
Statements relayed to a police officer by eyewitnesses, law enforcement officers, and
radio dispatch, which would be considered hearsay if offered to prove the truth of the matter
asserted, are admissible to establish the officer’s basis for believing that reasonable grounds to
arrest a driver existed. Davis, 416 S.W.3d at 829-30; Bouillon v. Director of Revenue, 306
S.W.3d 197, 201 (Mo.App. E.D. 2010) (Sullivan, J.). A trial court’s exclusion of such
statements is reversible error. Bouillon, 306 S.W.3d at 202. An arresting officer does not need
to actually observe the person driving a vehicle in order to arrest that person for driving while
intoxicated. Bouillon, 306 S.W.3d at 201; McFall v. Director of Revenue, 162 S.W.3d 526, 531
(Mo.App. S.D. 2005). An officer may rely on information received via police dispatch or
reported by citizen witnesses. Bouillon, 306 S.W.3d at 201; McFall, 162 S.W.3d at 531; Rain v.
Director of Revenue, 46 S.W.3d 584, 588 (Mo.App. E.D. 2001); Hunter v. Director of Revenue,
75 S.W.3d 299, 303 (Mo.App. E.D. 2002). Information given by eyewitnesses to the arresting
officer directly, or through other officers, even if hearsay, is admissible to establish probable
cause because it is not offered for its truth, but to explain the basis for a belief that probable
cause to arrest existed. Rain, 46 S.W.3d at 588. The trial court may not simply disregard,
particularly in the absence of a credibility finding, the uncontroverted evidence. Bouillon, 306
S.W.3d at 202; Martin v. Director of Revenue, 248 S.W.3d 685, 689 (Mo.App. W.D. 2008).
5
Here,
H the triall court erred
d in refusing to consider third-party w
witness stateements contaained
in the police report to
o determine whether Offficer Frauenffelder had reeasonable grrounds to bellieve
Respondent was driv
ving while in
ntoxicated. The
T Directorr’s point on aappeal is graanted.
Conclusion
C
The
T trial courrt’s judgmen
nt is reversed
d and remandded for proceedings connsistent with this
opinion.
Sherrri B. Sullivaan, P.J.
Patricia L.
L Cohen, J.,, and
Kurt S. Odenwald,
O J.., concur.
6