dissenting.
I respectfully dissent. The evidence on whether Cox had driven a motor vehicle while intoxicated is found in Bernier’s reports. In considering the reports, we should keep in mind it is the facts that were possessed by Bernier before the arrest upon which we decide the issue of probable cause. See Wilcox v. Director, 842 S.W.2d 240, 243 (Mo.App.1992). Those facts show Trooper Bernier arrived on the scene of a single vehicle accident at “0054” on January 6, 1997. Although Ber-nier recorded an “accident time” of “0035,” his report is without facts to support that conclusion, such as the status of the ignition (on or off), engine compartment warm, other mechanisms (e.g. lights) running, an admission of driving, or other facts that might suggest how long the vehicle had been stopped. Empty beer cans were found strewn about the scene. Also, a man was found lying outside the car unconscious and Bernier detected an odor of alcohol, both on the man and inside the car. However, as stated, there are no admissions to driving by anyone nor eye witness accounts of who was driving. Ber-nier was “unable to interview [the man] due to injuries,” never gave him a Miranda or “implied consent” warning, and did not request performance of field sobriety tests because the injured man was unconscious. Although Bernier reported finding blood and hair on the windshield and driver’s side door frame, no tests were done to link these items to Cox.
*309Finally, the most glaring problem with this record is that it yields no clue about when Bernier discovered the wrecked vehicle belonged to Cox. Accordingly, the trial court could have concluded the only information Bernier possessed when he arrested Cox was (1) Bernier found an unconscious man at the scene of an accident, (2) the man smelled of alcohol, (3) the man was lying beside a pickup truck, and (4) the truck had been wrecked in a rural area.
Having arrested Cox for DWI based on such facts evidently Bernier suspected Cox to be the driver of the overturned vehicle. However, suspicion alone is insufficient to establish probable cause. As explained in House v. Director of Rev., 997 S.W.2d 135 (Mo.App.1999):
“Director, in order to sustain the suspension or revocation of a license, must prove: (1) the driver — not someone believed to be the driver — was arrested on probable cause that he or she was committing an alcohol-related driving offense, and (2) the driver — not someone believed to be the driver — was driving with a blood alcohol concentration of at least .10 percent by weight.”
Id. at 139[3]. At best, the facts here may support Bernier’s suspicion that Cox was the driver; they do not compel a finding that Bernier had probable cause to arrest Cox for DWI. In this “factual context,” the trial court could have found it equally practical to believe someone else was driving, and this person left the scene for help or fled out of fear of being arrested.
I cannot conclude that Director has shown by preponderance of the evidence that Bernier had probable cause to believe Cox was driving. I would hold that the trial court’s finding of lack of probable cause is supported by substantial evidence. Moreover, in my view the trial court did not misapply the law. I would affirm the judgment of the trial court.