Logan v. Director of Revenue

ELLIS, Judge.

James T. Logan’s driver’s license was revoked for one year for failure to submit to a chemical test for his blood alcohol content pursuant to § 577.041.11. He filed a petition for review of the revocation in the circuit court of Callaway County as authorized by § 577.041.4. After a hearing, the trial court entered its order denying Logan’s petition and affirming the revocation. Logan appeals.

The sole issue on appeal is whether the arresting officer provided Logan with the information the legislature has declared to be necessary to enable a person to make an informed decision whether to take the test. Section 577.041.1 provides, in pertinent part:

The request of the arresting 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 his refusal to take the test may be used against him and that his license shall be immediately revoked upon his refusal to take the test.... [Upon a refusal,] the arresting officer shall, on behalf of the director of revenue, serve the notice of license revocation personally upon the arrested person and shall take possession of any license to operate a motor vehicle issued by this state which is held by the person.

(Emphasis added).

In the case at bar, the arresting officer informed Dr. Logan that if he refused the test, “I [the arresting officer] must file a sworn affidavit with the Director of Revenue who shall revoke your driver’s license for one year.” The officer did not advise Logan when his license would be revoked for one year, but merely indicated that at some future date, it would be revoked. The warning in no way suggested that, upon Logan’s refusal, the officer was going to immediately personally serve him with a notice of license revocation, and demand that he turn over his driver’s license as provided by § 577.041.1.

In Bennett v. Director of Revenue, 889 S.W.2d 166 (Mo.App.1994), this court held “that the opportunity to exercise intelligent judgment requires that the [motor vehicle] operator be advised of the mandatory effect of a refusal to be tested.” Id. at 170. The mandatory effect of a refusal to submit to a test is that the operator’s license “shall be immediately revoked.” § 577.041.1. The arresting officer is required to serve a notice of revocation on the driver at the time of the refusal, and take possession of the person’s driver’s license. Id. These actions cannot be construed as anything other than an immediate revocation of the operator’s license. Bennett went on to declare that “the warning given the arrested person [must] clearly convey the message that upon a refusal, an immediate revocation of the person’s license will occur.” Bennett, 889 S.W.2d at 169 (emphasis added). The Southern District of this court reached a similar result in Vinson v. Director of Revenue, 892 S.W.2d 380 (Mo.App.1995). In that case, the arresting officer informed Vinson that his driver’s license might be revoked if he failed to take the test. In finding this warning insufficient, the court stated:

[W]e hold the officer’s failure to clearly convey to Vinson that his operating privilege would be immediately revoked upon refusal to take the test prevented Vinson from making an informed decision on whether to take it. Therefore, Vinson’s decision to forgo the test did not constitute a refusal within the meaning of Sec. 577.041.4(3).

Id. at 332.

In Jones v. Schaffher, 509 S.W.2d 72, 77 (Mo.1974), our Supreme Court stated that “[t]he decisive question is ... whether the statutory warning was given.” Similarly, in *890Collins v. Director of Revenue, 691 S.W.2d 246, 262 (Mo. banc 1985), the Court held that under § 577.041.1, the arresting officer is obligated to “inform the arrestee of the consequences” of refusing to submit to the chemical test. As we said in Bennett:

It is, therefore, clear that the mandate of the statute to inform the arrested person of the consequences of a failure to submit to a test must be obeyed for there to be a valid revocation based on such refusal. See generally Jones, 509 S.W.2d at 77 (arresting officer must provide “adequate knowledge of the facts and consequences” of refusal); Winters v. McNeill, 772 S.W.2d 749, 752 (Mo.App.1989); Sec. 577.041.5 (providing that if the trial court determines any issue in Sec. 577.041.4, including the issue of whether or not the arrestee refused to submit to the test, “not to be in the affirmative, he shall order the director to reinstate the license or permit to drive.”)

Id. at 169-70. Telling Logan that his license would be revoked for one year at some future, unspecified and indeterminate date did not inform him of the actual consequences of a failure to submit to the test, namely, that his license would be instantaneously revoked.

The problem in this case is not that the officer failed to use the words “immediate,” or “immediately.” The officer need not use the exact wording of the statute. Rather, “any language which clearly conveys the message that the motorist’s license shall be immediately revoked upon refusal to take the test is adequate.” Id. at 171. The difficulty here is that Logan was not given the unequivocal notice that the revocation would occur as soon as he refused the test as dictated by § 577.041.1.

The dissent suggests that this is a case of form over substance. Not surprisingly, we disagree. The elected representatives of the people have determined what information is to be provided to an arrested person. Section 577.041.1 contains that determination, and obviously was signed into law by the Governor. As noted earlier, our Supreme Court has stated that “[t]he decisive question is ... whether the statutory warning was given.” Jones v. Schaffner, 509 S.W.2d at 77. When the legislature makes a determination that certain information is to be provided to a citizen, the Governor has approved of the determination by signing the bill into law, and our Supreme Court has said that the decisive question is whether the information is given, we do not perceive the matter to be one merely of form, but rather of substance.

In a larger context, however, perhaps the most troubling part of this ease is the position taken by the Director at oral argument that law enforcement officers need not follow the mandate of § 577.041.1 in warning arrested persons of the consequences of their refusal to take the test. The department of revenue is directed to provide forms to law enforcement agencies for notice of suspension or revocation, notice of rights and responsibilities and related matters. § 302.520.4. At oral argument, counsel for the Director informed the court that “alcohol influence report” forms had been revised to take account of the amendments to § 577.041.1 in 1993. The form in question contains the language to be used by the arresting officer in warning the arrested person of the consequences of refusing to take the test. The form anticipates the printed language will be read to the person under arrest by the officer. Thus, it is the document on which the law enforcement officer relies to insure that he or she properly warns the arrested person as required by § 577.041.1. In revising the form, the department construed § 577.041.1 to mean that the warning read as follows: “If you refuse to take the test(s), I must file a sworn affidavit with the Director of Revenue who shall revoke your Drivers License for one year.” However, the statute provides that “the arresting officer ... shall inform the person ... that his license shall be immediately revoked upon his refusal to take the test_” The statute is clear and unambiguous, requiring no construction. In Bennett, we held that the statute did not require the officer to use the exact words of the statute, *891but rather that “any language which clearly conveys the message that the motorist’s license shall be immediately revoked upon refusal to take the test is adequate.” Id. at 171. Nevertheless, we offered the practical advice that the simplest, and surely the best approach for police to use, would be “to use language that tracks the statute.” Id. The department’s interpretation of the statute does neither. The inadequate revision of the “alcohol influence report” form, and the position taken by the Director, evidence a disregard for the directive of the legislature and will, as this case demonstrates, foster confusion and litigation.

Therefore, consistent with the holdings in Bennett and Vinson, the judgment of the trial court is reversed, and the Director is ordered to reinstate Logan’s license.

ULRICH, P.J., concurs.

LOWENSTEIN, J., dissents in separate dissenting opinion.

. All statutory references are to RSMo 1994 unless otherwise noted.