The Missouri Court of Appeals – Eastern District recently handed down a new opinion regarding the administrative suspension of an individual’s driving privileges after receiving a DWI. Tweedy vs. DOR, ED99188

In this case the arresting officer (Deputy Hoelzer) was called to the scene by another officer (Deputy Burkard). Based on Deputy Burkard’s observations and the failure of the field sobriety tests, Deputy Hoelzer arrested Tweedy on suspicion of DWI. After his arrest, Tweedy consented to a breath test and admitted he was driving. The Director of Revenue (DOR) suspended Tweedy’s license and Tweedy filed a trial de novo.

Throughout the course of the trial, Tweedy objected to Deputy Burkard’s statements contained within Deputy Hoelzer’s report citing double hearsay. The Director agreed to subpoena Deputy Burkard, but he did not appear for trial and the Director did not attempt to enforce the subpoena. Instead, the Director submitted Exhibit B, a supplemental report provided by Deputy Burkard as the foundation for the double hearsay. The Court found the Exhibit B, which was undated, unsigned and inconsistent to be fiction and not credible. The Court determined that without this evidence, the Director failed to prove there was probable cause and ordered Tweedy’s driving privileges reinstated.

The Appellate Court reviewed several points on appeal, most of which is helpful to the driver in cases of administrative suspensions. First the Court makes sure to point out that the Director has both the burden of production and persuasion. There is “no presumption of validity if the Director’s evidence,” and the driver is not placed with a burden to produce evidence to contradict the Director’s evidence on a contested issue. Even though evidence is admissible pursuant to statute, it does not necessarily satisfy the Director’s burden of persuasion.

The dispute in this matter was that the office did not have probable cause to arrest Tweedy. In Missouri, it is not necessary for the office to observe the person driving to create probable cause. Third party statements from witnesses or other officers are generally admissible even though they are hearsay. In this case, the court questioned the credibility of the Third party statement. The Director argues that regardless of whether the third party statement was true the officer relied on that statement and therefore had probable cause. The trial court disagreed and felt they should be able to find whether such third party statements were credible or not. If the driver disputes, the trial court has the right to disbelieve the evidence.

The Director also attempted to use Tweedy’s post-arrest admissions as probable cause. Probable cause must be based on information in the officer’s possession at the time of the arrest, not acquired after the fact. The Court held those statements obtained in the interview could not be used for probable cause.

This case also had the Director responsible for the subpoena of Deputy Burkard. Normally, the driver required to subpoena the officer if the driver wishes to confront and examine the officer. However, in this case, the Director agreed to undertake the responsibility and therefore created a duty to have the officer appear.

Finally, the Director could not require Tweedy to testify. Even though an adverse party may be required to testify in a civil matter, Tweedy had a constitutional right not to testify against himself in a civil matter where the answers might incriminate him in a future criminal proceeding.