In the Missouri Court of Appeals
Eastern District
DIVISION ONE
JOSHUA SCHULZE, ) No. ED102408
)
Appellant, ) Appeal from the Circuit Court
) of St. Louis County
) 12SL-AC35343
vs. )
)
DIRECTOR OF REVENUE, ) Honorable Dale W. Hood
STATE OF MISSOURI )
)
Respondent. ) FILED: October 20, 2015
OPINION
Joshua Schulze (Driver) appeals from the trial court’s entry of judgment sustaining the
Director of Revenue’s (Director’s) revocation of Driver’s driving privileges for refusing to
submit to a chemical test of his breath. We reverse and remand for the reinstatement of Driver’s
driving privileges. 1
Factual and Procedural Background
In October 2012, Driver was arrested on suspicion of driving while intoxicated. The
police officer who arrested Driver transported him to the police station and informed Driver of
the Missouri Implied Consent Law. When the police officer asked Driver to provide a sample of
his breath for analysis, Driver asked to speak with his attorney before making his decision
whether to provide a breath sample. The police officer allowed Driver 15 minutes, and Driver
used his cell phone to make several calls to his wife and one call to his attorney’s office, which
was closed. At the end of the 15 minutes, the police officer again asked Driver if he would
provide a sample of his breath for his analysis. Driver declined. The police officer thereafter
informed Driver of his Miranda 2 rights and charged Driver with driving while intoxicated. The
Director subsequently revoked Driver’s driving privileges. Driver filed a petition with the trial
court for review of the revocation. Following a hearing in which testimony and evidence were
adduced, the trial court sustained the Director’s revocation of Driver’s driving privileges. This
appeal followed.
Discussion
In his sole point on appeal, Driver claims the trial court erred in entering judgment
against him because Driver requested an opportunity to consult with an attorney regarding
whether he would submit to a chemical test of his breath but was not provided 20 minutes to
contact an attorney, pursuant to Section 577.041 3. Driver also argues that he did not abandon his
effort to contact an attorney, rendering the evidence presented by the Director insufficient to
support a finding that Driver refused to submit to such a test.
In response, the Director has filed its Confession of Error, which states:
Respondent confesses that the circuit court erred in its judgment sustaining the
Director’s revocation of [Driver’s] driving privileges for refusing to submit to a
chemical test because the Director did not meet his burden in the [S]ection
577.041.4, RSMo hearing, in that the Director did not show that [Driver]
voluntarily abandoned his 20-minute opportunity in which to contact an attorney
prior to its expiration.
1
Prior to oral argument in this case, Driver filed his Motion to Reverse and Remand. Given our
disposition of the case, Driver’s motion is moot.
2
Miranda v. Arizona, 384 U.S. 436 (1966).
3
All statutory references are to RSMo 2000, as amended.
2
The Director bears the burden of proof to support its revocation of a driver’s license for
refusal to submit to a breath alcohol test. Keim v. Director of Revenue, 86 S.W.3d 177, 180
(Mo. App. E.D. 2002). If the Director fails to satisfy its burden, the reinstatement of the driver’s
license will result. Keim, 86 S.W.3d at 180. Section 577.041 provides, in relevant part:
If a person when requested to submit to [a chemical test of his breath] requests to
speak to an attorney, the person shall be granted twenty minutes in which to
attempt to contact an attorney. If upon completion of the twenty minute period
the person continues to refuse to submit to any test, it shall be deemed a refusal.
The Director’s burden includes proof that the driver has ceased attempting to contact an attorney
and indicates that the driver will make no additional attempts to contact an attorney within the
20-minute period. Id.
Given the Director’s concession, Driver’s point on appeal is granted.
Conclusion
The trial court’s judgment is reversed and remanded for the reinstatement of Driver’s
driving privileges.
_____________________________
Mary K. Hoff, Judge
Robert G. Dowd, Jr., Presiding Judge and Roy L. Richter, Judge, concur.
3