Slurred speech and double vision: Missouri's Supreme Court is unsteady on DWI standard: York v. Director of Revenue (1).

• Author: Spinden, Alison K.
• Position: Driving while intoxicated

1. INTRODUCTION

   Supreme Court Justice Potter Stewart observed that "[t]he art of being a judge, if there is such an art, is in announcing clear rules in the context of ... infinitely varied cases, rules that can be understood and observed by conscientious government officials." (2) This might be excellent advice for Missouri's judges to consider. After nearly fifteen years of struggling to formulate the proper standard for appellate review of a trial court's finding of probable cause, courts appear to be as unsettled on the issue as ever.

   In no context is this clearer than in cases involving charges of driving while intoxicated (DWI). Two contradictory lines of cases have emerged in DWI cases in Missouri, and decisions of the Supreme Court of Missouri issued within a year of each other provide good examples of each line, perhaps demonstrating the level of confusion that overshadows the issue. One line holds that appellate courts should review de novo a finding of probable cause based on uncontroverted evidence. (3) These courts assert that, because no facts are in dispute, the only remaining issue is one of law and, thus, there is no need for deference. (4) The other line holds to a deferential standard--that the appellate court should view the evidence, even if uncontroverted, in the light most favorable to the trial court's ruling. (5) These courts hold to the proposition that search and seizure issues often involved mixed questions of law and fact, and the appellate court "must give due regard to the trial court's opportunity to judge the credibility of the witnesses in determining whether the trial court's findings are supported by substantial evidence." (6)

   The Supreme Court of Missouri's latest opinion on the issue, York v. Director of Revenue, has significantly added to the confusion by not only contradicting the standard enunciated in its own decision issued just four years earlier, but also by making the pronouncement unceremoniously, without explanation, and without acknowledging that it was even aware that it was declaring a changed standard. (7) And, perhaps of equal significance, the court has exacerbated the confusion by apparently rejecting the United States Supreme Court's holding that the Fourth Amendment to the United States Constitution requires de novo review of probable cause rulings. (8) This rebuff is significant because, since 1985, Missouri's courts have deemed the interests protected by Missouri's constitutional guarantees of reasonable governmental searches and seizures (9) to be identical to the interests protected by the United States Constitution's Fourth Amendment. (10) Missouri has explicitly acknowledged that this recognition applies to the standard of review in cases to determine if there is a violation of the Fourth Amendment. (11) As a consequence, Missouri courts have obligated themselves to defer to the United States Supreme Court's holdings concerning all search and seizure issues, including what constitutes probable cause. (12) Missouri courts deem requirements of "probable cause" DWI cases to be virtually identical to the use of "probable cause" in search and seizure cases. (13) The sudden rejection by Missouri's Supreme Court of the United States Supreme Court's holding--a holding that the Missouri court cited with approval just two years previously (14)--therefore necessarily suggests that Missouri's courts may no longer deem its state's constitutional guarantees to be identical to those protected by the Fourth Amendment. If so--and there does not appear to be any other logical explanation for the rebuff--the change is drastic, especially in light of its occurring without even an explanation.

   Whether the change results from mistake or was by design is not clear. The problem created by the Supreme Court of Missouri in York is not that its announced rule lacked clarity. The rule, as articulated by the court, was simple enough. The problem lies not in the court's ability to articulate a rule, but in the manner in which it unveiled the rule: unceremoniously and without any apparent acknowledgement that it was contradicting precedent. Some uncertainty is to be expected as a necessary evil accompanying most any change. But by making such abrupt, unexplained change in an area already fraught with uncertainty and some confusion, the Supreme Court of Missouri has created much confusion. Indeed, a Missouri appellate decision, after noting York's inconsistencies with precedent, resigned itself to being unable to do anything other than "to follow." (15)

   The Supreme Court of Missouri must hasten to clarify the issue and resolve the uncertainty surrounding the matter. Until it does, confusion undoubtedly will persist. To the extent that the Supreme Court intended the change enunciated in its York decision, it should heed the well-considered analysis of the United States Supreme Court and return to the de novo standard set out in its previous decisions. Doing so will, as Chief Justice William Rehnquist reasoned in Ornelas v. United States, assure that defendants are not subjected to a widely varying notion of probable cause and that law enforcement officers will have clearer guidelines of what the law demands of them. (16)

2. LEGAL BACKGROUND

   1. The Standard of Review of Probable Cause Findings in Missouri Courts

      Probable cause--or its legal equivalent "reasonable grounds" (17)--has emerged as a central issue in DWI cases because Missouri's legislature made it a threshold requirement for testing motorists to determine whether or not they were driving under the influence of intoxicants or drugs. (18)

      The law declares that a motorist, simply by driving, impliedly consents 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." (19) The courts refer to this law as the "implied consent law." (20) Notwithstanding the motorist's consent, a prerequisite to an officer's asking a motorist to submit to a test is that the officer arrest the motorist "for any offense arising out of acts which the arresting officer had reasonable grounds to believe were committed while the person was driving a motor vehicle while in an intoxicated or a drugged condition." (21) If the motorist refuses to submit to the test, the law requires that the officer administering the test take possession of the motorist's driver's license and to issue a temporary permit authorizing the motorist to operate a vehicle for fifteen days. (22) The law mandates that the arresting officer make a report informing the director of the Department of Revenue either of the motorist's refusal to submit to test (23) or of tests results showing that the motorist's blood alcohol content exceeded .08 percent. (24) The law obligates the director, upon receiving the officer's report, to "revoke" the motorist's license for one year. (25)

      The General Assembly did not define "reasonable grounds" in the implied consent law. The courts, however, have equated the term to "probable cause" as used in search and seizure cases. (26) Probable cause "exists when the arresting officer's knowledge of the particular facts and circumstances is sufficient to warrant a prudent person's belief that a suspect has committed an offense." (27) Whether or not the arresting officer had probable cause to believe that the motorist was driving while intoxicated or in a drugged condition is an issue that the motorist can ask the circuit court to review de novo in a postrevocation hearing. (28)

      Because the director's decision to revoke a motorist's license is a noncontested case, (29) the circuit court conducts a review of the director's decision de novo. (30) The circuit court is to decide three requisite elements for revocation of the license: (1) that the driver was under arrest when asked to submit to the test, (2) that the arresting officer had probable cause or reasonable grounds for believing that the driver was driving while intoxicated or in a drugged condition, and (3) that driver refused to submit to an authorized chemical test (31) or had a blood alcohol concentration of at least .08 percent. (32) The burden is on the director to prove all these elements at the hearing by a preponderance of the evidence. (33) If the director fails to carry her burden of proving any one of these three elements, the circuit court must order reinstatement of the motorist's license. (34)

      The circuit court's judgment is subject to review by an appellate court. (35) Typically, an appellate court reviews the trial court's judgment concerning whether or not to reinstate a motorist's license according to a deferential standard: Does substantial evidence support the judgment, is the judgment contrary to weight of the evidence, or did the trial court erroneously declare or apply the law? (36) The appellate court also must give deference to the trial court's determinations of credibility. (37)

      Missouri's courts are split, however, concerning the standard that an appellate court should use to review a trial court's ruling based on uncontroverted evidence. A large portion of the cases with uncontroverted evidence are cases in which the Department of Revenue's director merely presented written business records from her files rather than calling the arresting officer and others as witnesses, and the motorist does not present any evidence. (38)

      1. De Novo Review

         One line of cases holds that the appellate court's review is de novo because the issues decided by the trial court are matters of law and not of fact. (39) Because the appellate court can decipher the written record as ably as the trial court, there is no need for it to defer to the trial court's judgment. (40) The Missouri Court of Appeals announced this standard of review in the context of a DWI case in Hedrick v. Director of Revenue. (41)

         At issue in Hedrick was whether or not the circuit court had properly ordered...