In the
Missouri Court of Appeals
Western District
TRAVIS RADER, )
)
Appellant, ) WD78880
)
v. ) OPINION FILED: May 31, 2016
)
DIRECTOR OF REVENUE, )
)
Respondent. )
Appeal from the Circuit Court of Callaway County, Missouri
The Honorable Carol A. England, Judge
Before Division One: Lisa White Hardwick, Presiding Judge, Thomas H. Newton, Judge
and Cynthia L. Martin, Judge
Travis Rader ("Rader") appeals a judgment sustaining the revocation of his driving
privileges based on his refusal to submit to a chemical analysis test to determine his
blood alcohol content. Because the evidence was sufficient to establish Rader's refusal,
we affirm.
Factual and Procedural Summary
Rader was arrested on November 9, 2014, for driving while intoxicated. Rader
concedes on appeal that the arresting officer had reasonable grounds to believe that Rader
was operating a motor vehicle while intoxicated. [Appellant's Brief, p. 7] Rader also
concedes that after his arrest, the arresting officer read him the implied consent warning.
[Appellant's Brief, p. 7] The only issue on appeal is whether the evidence was sufficient
to establish that Rader refused to provide a sample of his breath for testing as requested
by the arresting officer. We view the evidence with respect to this contested issue in the
light most favorable to the judgment, giving deference to the trial court's assessment of
the evidence. Bruce v. Dep't of Revenue, 323 S.W.3d 116, 118-19 (Mo. App. W.D.
2010).
Viewed in this manner, the evidence established that after Officer Clay Allen
("Officer Allen") read Rader Missouri's implied consent warning, Rader agreed to take a
breath test. He attempted to blow into the breath testing machine three times. During his
first attempt, Rader covered the mouthpiece of the instrument with his upper lip, and the
instrument read "insufficient sample." Officer Allen told Rader that his upper lip was
covering the mouthpiece of the instrument, and that he was not providing enough air to
permit the instrument to give a reading. Rader did not modify the position of his mouth.
He attempted to blow into the instrument a second and third time, and on both occasions
covered the mouthpiece with his upper lip, yielding an "insufficient sample" reading.
Thereafter, Rader told Officer Allen that he was not going to blow again and sat down.
Officer Allen noted on the Alcohol Influence Report that Rader refused to submit to a
breath test.
Rader filed a petition to review the resulting administrative suspension of his
driving privileges. Following a hearing, where the above evidence was elicited through
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the testimony of Officer Allen and through submission of a certified copy of the Alcohol
Influence Report, the trial court entered its findings of fact, conclusions of law, and
judgment ("Judgment") sustaining the revocation of Rader's driving privileges.
Rader timely appealed.
Analysis
In a driver's license revocation case, 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).
Section 577.020.11 provides that "[a]ny person who operates a motor vehicle upon
the public highways of this state shall be deemed to have given consent to . . . a chemical
test or tests of the person's breath, blood, saliva or urine for the purpose of determining
the alcohol or drug content of the person's blood." If a driver refuses to submit to
chemical analysis to determine his blood alcohol content, that driver's license will be
subject to revocation pursuant to section 577.041. If a driver petitions for review of a
license revocation, it is the Director of Revenue's burden to prove by a preponderance of
the evidence: (i) that the person was arrested or stopped; (ii) that the arresting officer had
reasonable grounds to believe that the person was operating a motor vehicle under the
influence of drugs or alcohol; and (iii) that the person refused to submit to chemical
analysis. Section 577.041.4; Bruce, 323 S.W.3d at 119 (Mo. App. W.D. 2010).
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All statutory references are to RSMo 2000 supplemented through the date of Rader's arrest.
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Rader does not challenge the sufficiency of the evidence to establish the first two
criteria described in section 577.041.4. In Rader's sole point on appeal, he challenges
only the sufficiency of the evidence to establish that he refused to submit to chemical
analysis. The issue of whether a driver has refused to submit to a chemical analysis test
is a question of fact to be decided by the trial court. Hursh v. Director of Revenue, 272
S.W.3d 914, 917 (Mo. App. W.D. 2009).
In the context of implied consent, the Missouri Supreme Court defines "refusal" as
follows:
[A]n arrestee, after having been requested to take the breathalyzer test,
declines to do so of his own volition. Whether the declination is
accomplished by verbally saying, "I refuse," or by remaining silent and just
not breathing or blowing into the machine, or by vocalizing some sort of
qualified or conditional consent or refusal, does not make any difference.
The volitional failure to do what is necessary in order that the test can be
performed is a refusal.
Spradling v. Deimeke, 528 S.W.2d 759, 766 (Mo. 1975). Here, the trial court found that
Rader refused to submit to a chemical analysis test as requested by Officer Allen. Rader
argues that he made a bona fide attempt to provide a breath sample for testing on three
occasions, and that the three "insufficient sample" readings were not sufficient to support
a finding of refusal. Rader's argument ignores that Officer Allen specifically pointed out
after the first failed attempt that the positioning of Rader's upper lip was preventing the
breath instrument from taking a reading. Yet, during the second and third attempts,
Rader continued to use his upper lip to cover the mouthpiece of the instrument.
The trial court was free to infer from this evidence that Rader's attempts were not
bona fide. A driver's failure to follow instructions about the manner in which to blow
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into a breath analysis machine is sufficient evidence for a finder of fact to find a
volitional failure to submit to chemical analysis test as required by law. See Hursh, 272
S.W.3d at 917 ("'A person's act in not blowing into the testing machine and by blowing
around the mouthpiece to prevent the necessary quantity of air to proceed into the
machine may be considered a refusal.'") (quoting Tarlton v. Director of Revenue, 201
S.W.3d 564, 569 (Mo. App. E.D. 2006)); Wei v. Director of Revenue, 335 S.W.3d 558,
565-66 (Mo. App. S.D. 2011) (holding that evidence was sufficient to find that a driver
refused a chemical analysis test when the driver failed to blow into a breath test
instrument in the manner instructed).
Moreover, even if we were to conclude that Rader's three unsuccessful attempts to
blow into the breath testing instrument were not sufficient to support a finding that he
refused to submit to chemical analysis, Rader does not contest that after the three failed
attempts, he expressly refused to blow again. See Chapman v. McNeil, 740 S.W.2d 701,
702 (Mo. App. S.D. 1987) (affirming suspension of driver's license where driver
unsuccessfully blew into breath testing instrument three times, then expressly advised
that he was not going to blow anymore).
Point denied.
Conclusion
The trial court's Judgment is affirmed.
__________________________________
Cynthia L. Martin, Judge
All concur
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