TYLER J. ROMINES,                                )
                                                 )
        Petitioner-Respondent,                   )
                                                 )
vs.                                              )       No. SD35774
                                                 )
DIRECTOR OF REVENUE,                             )       Filed: August 29, 2019
STATE OF MISSOURI,                               )
                                                 )
        Respondent-Appellant.                    )

                APPEAL FROM THE CIRCUIT COURT OF TEXAS COUNTY

                                Honorable Judge Kerry G. Rowden

REVERSED AND REMANDED

        In this driver's license revocation case, the Director of Revenue ("Director")

appeals a judgment reinstating the driving privileges of Tyler J. Romines ("Driver").

Director revoked Driver's driving privileges because Driver refused to submit to a

chemical test of his blood alcohol content after he was arrested for driving while

intoxicated. See § 302.574.1.1 Following a hearing, the trial court reinstated Driver's

driving privileges, and Director appeals. Director argues the trial court misapplied the

law when it held Director had failed to meet his burden to prove Driver was "actually



1All statutory citations are to RSMo. Cum. Supp. (2017), unless otherwise indicated. All rule references
are to Missouri Court Rules (2019).
driving while intoxicated" rather than that the officer had "reasonable grounds to

believe" Driver was driving while intoxicated. We agree, reverse the trial court's

judgment, and remand this case to the trial court which is instructed to apply the correct

legal analysis to the facts it found.

                           Factual and Procedural Background

       On March 25, 2018, at 1:33 a.m., Officer Kenneth Reynolds ("Officer Reynolds")

of the Houston, Missouri Police Department observed a vehicle exceeding the speed

limit by traveling 51 miles per hour in a 35 mile per hour zone. Driver was driving the

vehicle. After he pulled Driver over and began speaking with Driver, Officer Reynolds

smelled "a faint odor of alcohol" coming from Driver's vehicle. Driver admitted "he'd

drank a couple [of] beers" and had been drinking Bud Light.

       Officer Reynolds asked Driver to perform three field sobriety tests: the

horizontal gaze nystagmus ("HGN"), the walk-and-turn, and the one-leg stand. Based

on Driver's performance on the HGN test, Officer Reynolds concluded Driver had "been

drinking" and was "under the influence." Officer Reynolds administered the one-leg

stand test, where Driver "put his foot down several times." Officer Reynolds stopped

administering this test because he was afraid Driver would fall over. Regarding the

walk-and-turn test, Officer Reynolds stated Driver "failed to maintain the heel-to-toe

stance" and "took the incorrect number of steps."

       Officer Reynolds advised Driver he was under arrest, read him the implied

consent language, and requested Driver perform a portable breath test. Driver refused

to take the breath test.

       Officer Reynolds testified he believed Driver was driving while intoxicated.

Driver's driving privileges were revoked because of his refusal. A trial de novo was held

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on August 10, 2018, and on September 17, 2018, the trial court reinstated Driver's

driving privileges stating as follows:

              NOW on this 17th day of September, the [c]ourt, based on the
       credibility of the witness's testimony presented by [Director] at the
       hearing on August 10, 2018, and upon receipt and review of [Driver's] and
       [Director's] Memos in support of their respective positions, finds that
       [Director] has not met its burden on the issue of whether or not
       [Driver] was driving a motor vehicle in an intoxicated or
       drugged condition under RSMo. §302.574.4, and, therefore, finds in
       favor of [Driver].

              THEREFORE, the [c]ourt orders the [Director] to reinstate
       [Driver's] driving privilege and expunge from it[s] records any and all
       references to this action and the refusal of [Driver] to comply with RSMo.
       §§302.574 and 577.041.

(emphasis added). A notice of appeal was timely filed.

                                  Standard of Review

       Appeals arising from a trial court's judgment in a driver's license revocation case

are governed by the same standard of review as other court-tried civil cases. White v.

Dir. of Revenue, 321 S.W.3d 298, 307 (Mo. banc 2010); Mills v. Dir. of Revenue,

568 S.W.3d 904, 906-07 (Mo. App. W.D. 2019). That is, the trial court's judgment will

be affirmed "unless there is no substantial evidence to support it, unless the decision is

contrary to the weight of the evidence, or unless the trial court erroneously declares or

applies the law." Hinnah v. Dir. of Revenue, 77 S.W.3d 616, 620 (Mo. banc 2002).

Legal issues are reviewed de novo. White, 321 S.W.3d at 308. "When the facts relevant

to an issue are contested, the reviewing court defers to the trial court's assessment of the

evidence." Id. "This Court will not affirm a circuit court judgment that erroneously

declares or applies the law." Strup v. Dir. of Revenue, 311 S.W.3d 793, 796 (Mo.

banc 2010); see White, 321 S.W.3d at 307-08.



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                                            Discussion

        Under Missouri's implied consent law, any person operating a vehicle on

Missouri highways "shall be deemed to have given consent . . . to a chemical test . . . for

the purpose of determining the alcohol or drug content of the person's blood" if certain

statutory prerequisites are met. § 577.020.1; see Ross v. Dir. of Revenue, 311 S.W.3d

732, 734 (Mo. banc 2010). If a driver refuses to submit to a chemical test, he or she will

be served with a notice of license revocation. § 302.574.1. The driver may request a

hearing. § 302.574.4.2

        "The Director bears the burden of establishing a prima facie case for license

revocation by a preponderance of the evidence." Howe, 575 S.W.3d at 250. At the

hearing, the only issues before the court as applicable to this case are:

        (1) Whether the person was arrested or stopped;

        (2) Whether the officer had:

        (a) Reasonable grounds to believe that the person was driving a motor
        vehicle while in an intoxicated or drugged condition;

        ...

        (3) Whether the person refused to submit to the test.

        5. If the court determines any issue not to be in the affirmative, the court
        shall order the director to reinstate the license or permit to drive.

§ 302.574.4 and .5; see Davis v. Dir. of Revenue, 416 S.W.3d 826, 829 (Mo. App.

S.D. 2013). The Director's failure to prove any of these three elements requires the

driver's license to be reinstated. Howe, 575 S.W.3d at 250; see § 302.574.5.




2 The provisions currently found in § 302.574.4 were previously located in § 577.041.4. Howe v. Dir. of

Revenue, 575 S.W.3d 246, 250 n.3 (Mo. App. E.D. 2019).


                                                   4
       Neither party disputes that Driver was driving the vehicle or that Driver refused

to submit to the chemical test. Director challenges the trial court's judgment as a

misapplication of the law "in that the court found only that the Director had not proven

that [Driver] was actually driving while intoxicated, but [§] 302.574 requires only that

the Director prove that the officer had reasonable grounds to believe that [Driver]

was driving while intoxicated." (emphasis added). Driver conceded that "the wording of

the court's ruling . . . was incorrect" and "[a]dmitedly, the order . . . misstated the

standard under RSMo § 302.574.4."

       We agree. The language of the judgment misstates the law. The proper standard

to determine whether an officer has reasonable grounds to believe a person has been

driving a motor vehicle while intoxicated was stated in Hager v. Director of

Revenue as follows:

       Reasonable grounds is virtually synonymous with probable cause. Probable
       cause exists when the facts and circumstances warrant a person of reasonable
       caution to believe that an offense has been or is being committed, based on the
       circumstances as they appear to a prudent, cautious and trained police officer.
       Whether there is probable cause to arrest depends on the information in the
       officer's possession prior to the arrest. 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.

284 S.W.3d 192, 196 (Mo. App. S.D. 2009) (internal citations and quotation marks

omitted).

       The relevant inquiry is not whether the person "actually was driving [while

intoxicated] but whether the officer who requested the test had reasonable grounds to

believe that the licensee was driving while intoxicated." Hinnah, 77 S.W.3d at 622

(emphasis added); Davis, 416 S.W.3d at 829; Hager, 284 S.W.3d at 196. Here,

Director's burden pursuant to § 302.574 is to show whether the officer had "reasonable


                                              5
grounds to believe" Driver was driving while intoxicated. See Auck v. Dir. of

Revenue, 483 S.W.3d 440, 444 (Mo. App. E.D. 2016) ("[T]here is no requirement that

the Director prove that the person actually was driving, or that he actually was

intoxicated while doing so."). We cannot infer or speculate as to what conclusion the

trial court would have reached had the trial court used the correct legal standard. See

Stirling v. Maxwell, 45 S.W.3d 914, 916 (Mo. App. W.D. 2001) (holding remand was

necessary after trial court applied the wrong standard because the appellate court could

not "infer what its judgment would have been if the correct standard were employed.").

                                        Decision

      The trial court's judgment is reversed. The case is remanded for determination of

whether the facts found by the trial court were sufficient to have provided Officer

Reynolds with reasonable grounds to believe Driver was driving while intoxicated.


MARY W. SHEFFIELD, J. – OPINION AUTHOR

WILLIAM W. FRANCIS, JR., P.J. – CONCURS

DANIEL E. SCOTT, J. – CONCURS




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