The Eastern District of Missouri Court of Appeals ruled that absence of some signs of intoxication does not negate the presence of other evidence of intoxication, and innocent explanations for a driver’s behavior do not negate the facts that establish probable cause.

This was a case on judicial review of a license suspension by the Director of Revenue (DOR).  The Trial Court reversed the suspension of the Driver’s license stating there was no probable cause to arrest the Driver/Defendant. The appellate court, however, disagreed and stated that the judgment restoring driving privileges was reversed with directions to affirm the suspension.

Facts

The Appellate Court reviewed the following facts:  On September 6, 2018, at approximately 8:01 p.m., the law enforcement officer (Trooper), received a complaint of careless and imprudent driving on Interstate 44 near the eastbound 205 mile marker. The report referenced a vehicle that was described as a black Jeep Grand Cherokee that was reportedly tailgating and speeding, and a license plate number was provided. The trooper subsequently observed the vehicle near the 213 mile marker and began pacing it. He observed that the vehicle was traveling at a rate of 78 miles per hour in a 70 mile-per-hour zone. Trooper further observed the vehicle driving in the left lane while not passing, observed the vehicle drive onto the left shoulder, and then observed the vehicle move to the right lane without signaling. Trooper initiated a traffic stop on the vehicle and the driver stopped without difficulty at the 216.8-mile marker. At approximately 8:10 p.m., the trooper made contact with the driver of the vehicle and requested his license and insurance documentation, which the driver provided without difficulty. Trooper identified the driver by his Missouri Driver License. Trooper indicated he could smell a moderate odor of intoxicants coming from inside the vehicle, . . . and [noted] that [Defendant’s] eyes were watery, bloodshot, and glassy. [“Defendant’s speech was not slurred.”] He requested that Defendant exit the vehicle and sit in his patrol vehicle. Defendant was cooperative and complied, accompanying Trooper to his patrol vehicle without difficulty. Trooper noted an open 25 fluid ounce can of Bud Light in the cup holder of the driver’s door pocket of Defendant’s vehicle. Trooper did no further investigation of the can and did not check to see if it was cold to the touch or if there was any liquid in the can. While seated in the patrol vehicle, Defendant stated, without being asked, that he had had a Blue Moon draft in a town at the next exit past Rolla at a bar in that town. He also told Trooper that he had been texting as an explanation for speeding, driving onto the left shoulder and not signaling when switching lanes. Trooper asked Defendant if he would perform field sobriety tests, and Defendant agreed to do so. Trooper performed the horizontal gaze nystagmus test. At trial, [the Director] stipulated that the Court should not consider the results of that test, and this Court therefore does not consider those results. Trooper then performed alphabet and reverse counting tests, and Defendant completed the alphabet test “perfect” according to Trooper and made no mistakes on the reverse counting test. Trooper next requested Defendant to submit to a preliminary breath test by blowing into a handheld portable breath testing instrument, and Defendant refused to do so stating he had been instructed not to blow into a portable breath test instrument by a friend who was a law enforcement officer. Trooper told Defendant that based on what he saw in his eyes during the horizontal gaze nystagmus test (which again [the Director] stipulated the results of which should not be considered by this Court) Defendant “was right there on the line” and if Defendant did not take the preliminary breath test, he would arrest him and take him to the next town and get a breath sample there. Defendant again refused to take the preliminary breath test.  Trooper then placed Defendant under arrest for driving while intoxicated and transported him to the Cuba Police Department. Trooper read Defendant his Implied Consent from the alcohol influence report, and Defendant agreed to submit to a breath test. Defendant performed the breath test using an Intox DMT Form # 11 [(“Blood Alcohol Test Report”)] shows that Defendant had a blood alcohol content of .125%.

Trial Court Ruling

The trial court concluded from these facts that there was not probable cause to arrest Defendant for driving while intoxicated, based upon the totality of the circumstances, and upon due consideration of all the evidence and considering the totality of the circumstances which includes evidence that weighs against reasonable grounds to believe Defendant was driving while intoxicated. Therefore, the Director (DOR) failed to meet its burden to prove by a preponderance of the evidence that Defendant was arrested upon probable cause to believe that he had committed an alcohol-related traffic offense. The Director then appealed claiming that the trial court misapplied the law because the historical facts found by the trial court establish probable cause as a matter of law

Defendant’s Argument and Court Reasoning

The Defendant argued there was plenty of evidence that weighed against reasonable grounds to believe Defendant was driving while intoxicated.  For example, Defendant’s innocent explanation to explain his behavior (i.e., speeding, and driving erratically because he was texting); Defendant’s failure to exhibit impaired physical movements (i.e., “no difficulty pulling over, providing his license and insurance information, following directions or maintaining balance as he exited his vehicle and walked to the trooper’s vehicle”); and Defendant’s proper performance of an “alphabet test and counting test.”

The Appellate Court analyzed that whether probable cause exists depends on information in the officer’s possession prior to the arrest. The court explained that there is no precise test for determining whether probable cause exists; rather it is based on the particular facts and circumstances of the individual case.

They went on to say referencing case law that probable cause is a “fluid concept” with no exact definition. It turns on the assessment of probabilities in particular factual contexts. Although there must be a “fair probability” that a particular offense has been committed, probable cause does not demand any showing that such a belief be correct or more likely true than false.

In this case, the trial court found the following facts occurred before Trooper arrested Defendant:

1. Trooper received a report that a vehicle was “tailgating and speeding” on Interstate 44. The report included a description of the vehicle and the vehicle’s license plate number. (Note: In Missouri, established law provides it is not necessary for the officer to observe the person driving the vehicle in order to create the requisite probable cause under Section 302.505.1. Rather, the officer may rely on information received from police dispatch or civilian witnesses.);

•  Less than ten minutes later, Trooper observed the vehicle traveling78 miles per hour in a 70 mile-per-hour zone, driving in the left lane while not passing, drive onto the left shoulder, and then move to the right lane without signaling;

• Defendant stopped the vehicle and provided his license and insurance without difficulty;

• Trooper could smell a moderate odor of intoxicants coming from inside    

          the vehicle” and Defendant’s eyes were watery, bloodshot, and glassy. Defendant’s speech

          was not slurred. Trooper also noted an open 25 fluid ounce can of Bud Light in the cup

          holder of the driver’s door pocket;

• Defendant was “cooperative” and accompanied Trooper to his patrol vehicle without  

difficulty;

• Without being asked, Defendant stated he had had a Blue Moon draft in a town at the next exit past Rolla at a bar;

7. He successfully performed alphabet and reverse counting tests; and

8. Defendant declined to submit to a preliminary breath test.

Appellate Court reasoned that these historical facts found by the trial court did establish probable cause as a matter of law because these facts would demonstrate to the senses of a prudent, cautious, and trained police officer a fair probability that Defendant was driving with an alcohol concentration in his blood, breath, or urine of .08% or more by weight.

The Appellate Courte went on to say that alternate innocent explanations for Defendant’s behavior and Trooper’s observations do not negate probable cause, but rather go to the ultimate issue of whether Defendant’s alcohol concentration in his blood, breath, or urine was .08% or more by weight.

The opinion emphasized that the fact that Defendant did not exhibit every indicia of intoxication does not negate the probative value in establishing probable cause of the indicia of intoxication that were present. The opinion also noted: 1) Third-party statements are in general admissible to establish probable cause, even though they are hearsay, and 2) Refusal to submit to a preliminary breath test is properly admissible on the issue of probable cause.

The trial court’s judgment was reversed and remanded with the direction to affirm the suspension of Defendant’s driving privileges.  Judge Nancy Steffen Rahmeyer wrote the opinion, with Judges Gary W. Lynch and William W. Francis, Jr. concurring.