Case Summary for December 16, 2009

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Case Summary for December 16, 2009

THE FOLLOWING DOCKET SUMMARIES ARE PREPARED BY THE COURT'S STAFF FOR THE INTEREST AND CONVENIENCE OF THE READER. THE SUMMARIES MAY NOT INCLUDE ALL ISSUES PENDING BEFORE THE COURT AND DO NOT REFLECT ANY OPINION OF THE COURT ON THE MERITS OF A CASE. COPIES OF ALL BRIEFS FILED WITH THE COURT ARE AVAILABLE AT THE SUPREME COURT BUILDING, COURT EN BANC DIVISION. SUMMARIES ARE UNOFFICIAL AND SHOULD NOT BE QUOTED OR CITED.

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DOCKET SUMMARIES
SUPREME COURT OF MISSOURI

9 a.m. Wednesday, December 16, 2009

_________________________________________________________________

SC90317
Natalie R. Ross v. Director of Revenue
Platte County
Implied Consent in DWI
Listen to the oral argument:

Ross was represented during argument by Jeffrey S. Eastman of Keleher & Eastman in Gladstone, and the state was represented by Deputy Solicitor General Jeremiah J. Morgan of the attorney general's office in Jefferson City.

A highway patrol officer responded to a call about a girl standing next to the highway at 2 a.m. in February 2008. He went to the described location and saw a car had gone off the side of the road and down an embankment. The officer found Natalie Ross in the driver's seat of the car and determined she was under the influence of intoxicants. When she got out the car, he found a glass pipe for smoking marijuana on the driver's seat. Ross was arrested for possession of drug paraphernalia and careless and imprudent driving. Due to the cold weather conditions, the officer took Ross to a detention facility to conduct field sobriety tests. Ross performed poorly on the tests and was arrested for driving while intoxicated. She then refused to take the chemical breath test after being given the implied consent warning. The director of revenue revoked her driving privileges because of the refusal pursuant to section 577.041, RSMo. Ross appealed the director's decision to the circuit court. At trial, Ross argued more than 90 minutes passed between when she was allegedly driving while intoxicated and when the arrest occurred - a violation of section 577.039, RSMo. The trial court affirmed the revocation. Ross appeals.

Ross argues the revocation for refusing to submit to a chemical breath test was not supported by the evidence, is against the weight of the evidence and erroneously applies the law. She contends her arrest for driving while intoxicated was invalid because the arrest occurred more than 90 minutes after she was alleged driving while intoxicated. Ross asserts implied consent pursuant to section 577.020, RSMo, (anyone operating a motor vehicle on public highways are deemed to have given consent to a chemical test to determine if the person is driving under the influence) is subject to the person being arrested for driving while intoxicated within 90 minutes of the time of driving while intoxicated. She contends she was not arrested for violating section 577.010 within 90 minutes of driving and, therefore, could not have her license revocation based on not taking a breathalyzer after being read the implied consent warning.

The state responds that Ross's license revocation pursuant to section 577.041.4 is supported by substantial evidence. It asserts Ross's challenge to the evidence supporting probable cause should be rejected because she did not challenge the evidence at trial and first mentioned it in her substitute brief to this Court. The state contends, however, there is substantial evidence of probable cause including her failure of other tests, her appearance, and her refusal to submit to a chemical test. It argues section 577.020 does not limit implied consent to 90 minutes and the rule does not apply to license revocation claims under section 577.041, RSMo.

SC89994
Raymond L. Norris v. Director of Revenue, State of Missouri
Dent County
Implied consent in DWI
Listen to the oral argument:

The state was represented during argument by Edwin R. Frownfelter of the attorney general's office in Kansas City, and Norris was represented by David L. Simpson of St. James.

Raymond Norris was in his car at a fast food restaurant at 3 a.m. in May 2007 when a deputy with the Dent County sheriff's department contacted him. Due to Norris's behavior and appearance, the deputy searched Norris's person and coat. He found methamphetamine in Norris's coat, and the deputy and arrested Norris for possession of a controlled substance. Norris asked to speak to an attorney. The deputy called for backup and a local police officer arrived. The police officer conducted field sobriety tests and concluded Norris had consumed an illegal substance. Norris was transported to the sheriff's department, arriving at 4 a.m. The deputy asked Norris to submit to chemical test of his urine and read the statutory implied consent warning. Norris refused to submit to the test. The deputy told Norris he would lose his license. Norris again refused. The deputy then tried to interview Norris, but Norris would not talk without an attorney. Based on his refusal, the director of revenue revoked Norris's license, pursuant to section 577.041.1, RSMo. Norris sought to set aside the license revocation. In November 2007, the trial court ruled in Norris's favor on the basis that the arresting officer had failed to give Norris 20 minutes to try to contact an attorney as required by section 577.041, RSMo. The state appeals.

The state argues the trial court erred in reversing the revocation because Norris did not request to speak to a lawyer when the officer asked him to submit to a urine test and the 20 minute waiting period was not triggered. It contends section 577.041.1 states the 20 minute period shall only be granted when a person requests counsel after reading the implied consent notice.

Norris responds the director of revenue did not meet her burden of proving the deputy had reasonable grounds to believe he was driving while intoxicated. He asserts he requested to contact an attorney before and after the officer read the implied consent law, but the arresting officer violated section 577.041.1 in not giving Norris 20 minutes to do so.

SC90400
Adam Ford White v. Director of Revenue
Henry County
Revocation of driving privileges
Listen to the oral argument:

The state was represented during argument by Matthew L. Dameron of the attorney general's office inJefferson City, and White was represented by James E. Switzer of Clinton.

A highway patrol officer pulled over Adam White in September 2007, allegedly for speeding and not using a turn signal. During the stop, the officer detected an odor of intoxicants and saw beer cans in White's vehicle. White took a preliminary breath test that indicated alcohol was present. The officer then had White perform field sobriety tests in which White had some difficulties, but did not fail. The officer arrested White based on probable cause that he was driving while intoxicated. The director suspended White's driving privileges following his arrest pursuant to section 302.505, RSMo. White sought judicial review arguing there was no probable cause to arrest him. The trial court reinstated his license. The director appeals.

The state argues the trial court's judgment was against the weight of the evidence. It contends there was substantial and uncontroverted evidence of probable cause, the trial court erroneously applied the law and the evidence in this case is similar to cases in which courts routinely have found probable cause.

White responds there was no probable cause to believe he was driving while intoxicated. He contends the trial court's decision must be affirmed because it is supported by substantial evidence, is not against the weight of the evidence, and it does not misstate or misapply the law.

SC90347
State of Missouri v. Robert R. Brooks
Jefferson County
Miranda warning
Listen to the oral argument:

Brooks was represented during argument by Joseph F. Yeckel of St. Louis, and the state was represented by Shaun J. Mackelprang of the attorney general's office in Jefferson City.

Robert Brooks lived with his fiancée, Amanda Cates. Both were police officers with access to fire arms. In August 2006, Brooks called 911 saying he accidentally shot Cates in their home. A police officer who responded to Brooks's call activated a microphone in his uniform and recorded 80 minutes of the activities taking place. There was also a 26 minute video of Brooks being interviewed by police at the police station after an officer advised Brooks of his Miranda rights where Brooks would not say what happened. Brooks was arrested for Cates's murder. At trial, Brooks alleged that during an argument Cates pointed a loaded gun at him, they wrestled over the gun and the gun discharged and shot Cates. The prosecutor mentioned several times that Brooks did not tell this to the officer at his house or the officers at the police station. He was convicted of second degree murder and armed criminal action for Cates's murder. The jury recommended a sentence of life imprisonment for the murder and 75 years imprisonment for the armed criminal action. Brooks appeals.

Brooks argues the trial court violated his right to due process and his right to remain silent and not have his silence used against him as guaranteed by the Fifth and Fourteenth Amendments of the United States and Missouri constitutions. He contends the trial court erred in allowing the prosecutor to emphasize his failure to make an statement to the police about the argument and wrestling over the gun during the prosecutor's opening statement and closing argument and the prosecutor presenting evidence highlighting his failure to make statements after he was given his Miranda right to remain silent. Brooks asserts the circuit court's curative instructions were inadequate to remove the prejudicial effect of the references to Brooks's post-Miranda silence.

The state responds the trial court did not plainly err or abuse its discretion in allowing the state to present evidence that Brooks did not explain the shooting prior to his arrest or when he made a statement after the Miranda warnings.