A recent Missouri Court of Appeals Eastern District case shows law enforcement or witnesses do not need to observe a driver weaving between lanes or actually crashing to prove a person intoxicated. Instead, it can be a combination of facts indicating he was drinking and driving, along with failing fielding sobriety tests, and witness statements. All that qualifies as reasonable grounds to charge a driver with driving while intoxicated.

The Appellant/Defendant appealed the trial court’s judgment upholding the Director of Revenue’s (Director) revocation of his driving privileges for refusing to submit to a breath test, claiming the trial court erred because there was insufficient evidence to support a finding of probable cause to believe Appellant drove while intoxicated.

The Appellate court held that Trial Court had substantial evidence before it to support its finding that the law enforcement officer (Officer) had probable cause to believe Appellant was driving while intoxicated. The Director presented sufficient evidence that the Officer had reasonable grounds to believe Appellant drove while intoxicated.

Appellant’s sole point on appeal was there was insufficient evidence to support a finding of probable cause to believe Appellant drove while intoxicated. Appellant argued the Director failed to present evidence as to Appellant’s condition while operating a motor vehicle at the time of the accident.

After all, Appellant argues, the arresting officer did not witness his driving, the accident itself, or even his condition.

Facts of Case

Here is some background. It was just before midnight when the Officer responded to a vehicle crash. Upon arrival he saw a vehicle consumed in flames, a broken mailbox, and two damaged vehicles in a driveway.

Officer spoke with two residents of the house who were the Appellant’s parents. Appellant’s father stated Appellant was driving and crashed, sustaining an injury to his head. Appellant’s parents stated Appellant was inside.

Officer continually asked to speak with Appellant, but Appellant’s parents refused. Officer asked Appellant’s parents if Appellant had been drinking. Appellant’s father remained silent, but Appellant’s mother nodded her head in an up and down motion. Moments later, Officer overheard Appellant’s father tell a neighbor Appellant was driving on a road adjacent to the road he crashed on and into the driveway. Officer’s supervisor then spoke with Appellant’s parents. Approximately 15 minutes after Officer’s arrival, Appellant’s parents allowed him to speak with Appellant. Officer noted scratches and a cut on Appellant’s face. Officer noted Appellant’s eyes were watery, glassy, and slightly bloodshot. Officer also smelled a moderate odor of alcohol emitting from Appellant’s breath.

Officer escorted Appellant to an ambulance noticing Appellant was unsteady on his feet. Appellant then refused further medical attention. Appellant was transferred to the police department. Officer continued to smell alcohol emitting from Appellant’s breath at the station and noted Appellant slurring his speech.

Appellant consented to the Standard Field Sobriety Test. The results of the Horizontal Gaze Nystagmus (“HGN”) test revealed Appellant’s eyes tracked equally and pupils were of equal size. However, Appellant had no smooth pursuit in both eyes, distinct and sustained nystagmus was observed at maximum deviation in both eyes, and nystagmus was detected in the left eye prior to 45 degrees.

During the Walk and Turn (“WAT”) test, Appellant did not touch heel to toe on multiple steps, used his arms for balance, and took the incorrect number of steps.

During the One Leg Stand (“OLS”) test, Appellant put his foot down twice. The first attempt ended in approximately eight seconds and his second attempt ended in approximately 15 seconds.

 Officer advised Appellant of Missouri’s Implied Consent and requested a breath sample. Appellant refused the breath test. Officer read Appellant his Miranda Rights, placing him under arrest. Officer asked if Appellant was operating the vehicle at the time of the crash. Appellant stated, “I guess so.” Appellant also stated he had not been drinking and was not presently under the influence.

Argument, Analysis and Findings

One of the issues Appellant argued was the Director’s failure to establish the time of the accident; therefore, there no probable cause could exist to arrest him for driving while intoxicated.

Officer gave vague testimony regarding the crash time and the Alcohol Inference Report (“AIR”), admitted into evidence with no objection by Appellant, provided an estimated time of the crash at 2359 hours.

Since the trial court found for the Director and did not issue a specific finding of fact on this issue, the trial court found Officer’s testimony and report to be credible.

The Appellate Court stated that under our standard, the time between the accident and Officer’s first contact with Appellant was approximately 16 minutes. Regardless, it is unnecessary for the Director to prove the exact time the accident occurred to determine whether the arresting officer had probable cause to believe the suspect drove while intoxicated.

Read the following excerpt from the appellate case to understand how the reviewing court came to its conclusion:

 “‘Reasonable grounds’ is virtually synonymous with probable cause.” Hinnah, 77 S.W.3d at 621. “Probable cause to arrest 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.” Id. (quoting State v. Tokar, 918 S.W.2d 753, 767 (Mo. banc 1996)). Suspicion alone is not enough to establish reasonable grounds, or probable cause, but absolute certainty is not required. Rain v. Dir. of Revenue, 46 S.W.3d 584, 588 (Mo. App. E.D. 2001). “Whether there is probable cause to arrest depends on the information in the officers’ possession prior to the arrest.” Hinnah, 77 S.W.3d at 621.”

And the sufficient evidence to show reasonable grounds included:

*Appellant drove while intoxicated. Appellant’s mother, when asked if Appellant had been drinking, nodded her head “yes.”

*The odor of alcohol, slurred speech, lack of balance, and glassy, bloodshot eyes are indicia of intoxication. The Officer noted a moderate smell of alcohol emitting from Appellant at first contact, during a medical check, and at the police station. Officer observed Appellant slurring his speech.

*While Appellant was being escorted to the ambulance, Officer noticed Appellant was unsteady on his feet and his eyes were watery, glassy and slightly bloodshot.

*Appellant also scored five points on the HGN test. The highest possible score is six points, while a score of four or more points is an indication that a suspect is intoxicated.

*Appellant scored three points on the WAT test. A score of two or more points is an indication the suspect is intoxicated.

Appellant argues there could not have been probable cause to arrest him for driving while intoxicated because Officer did not observe Appellant operating his motor vehicle or the accident. Nor did Officer Berry know of Appellant’s condition at the time of operating the motor vehicle. Appellant argues there were no witnesses to the accident, nor a witness who testified to his condition immediately after the accident.

However, the Director does not need to prove the person was driving or was actually intoxicated while doing so. Instead, the officer may rely upon circumstantial evidence to logically infer the person was driving.

The Court further stated an officer may rely on information provided by witnesses to establish probable cause to believe a person was driving in an intoxicated condition.

Appellant had scratches and injuries to his face, consistent with being in a crash.

The vehicle engulfed in flames in the yard where Appellant was found was registered to Appellant.

Appellant’s father told Officer Appellant was driving and had an accident. All these facts, plus several others, were enough to satisfy the burden to showing that there was probable cause to believe that the Appellant was driving intoxicated.

In the end, the Appellate Court affirmed the Trial Court’s decision. The opinion was written by Judge Philip M. Hess.