 

In the Mlissourt Court of Appeals
Eastern District

DIVISION FOUR
CHARLES ANDERSON, ) ED107027
)
Respondent, ) Appeal from the Circuit Court
) of Franklin County
v. ) 15AB-AC0O1852
)
DIRECTOR OF REVENUE, ) Honorable David L, Hoven
)
Appellant. ) Filed: July 16, 2019

Introduction
The Director of Revenue (Director) appeals the judgment of the trial court in
favor of Respondent Charles Anderson (Anderson), which reinstated Anderson’s driver’s
license because it found the Director failed to establish there was probable cause to
believe Anderson operated his vehicle while intoxicated. The Director argues the trial
court erroneously applied Missouri law regarding what constitutes “driving.” We
reverse.
Background
On September 21, 2015, Sergeant Joseph Renkenmeyer of the Washington Police
Department received a call from dispatch that a gas station clerk had reported a vehicle
parked by the gas station for about an hour, with the driver passed out inside the vehicle.

Sergeant Renkenmeyer and Sergeant Chad Sloan arrived at the gas station and saw the
vehicle parked with its engine running. The vehicle was not parked in a parking spot. It
was not illegally parked, but Sergeant Renkenmeyer observed it was unusually parked.
He testified he had seen vehicles parked along the same side of the gas station before, but
not the way this vehicle was parked. The officers observed Anderson in the vehicle,
slumped forward with his eyes closed. Sergeant Renkenmeyer knocked on the window
and shook the vehicle in order to rouse Anderson. Sergeant Renkenmeyer asked
Anderson to unlock and open the door, which Anderson did. Sergeant Sloan reached in
and turned off the engine.

Sergeant Renkenmeyer asked Anderson if he had had anything to drink, and
Anderson initially replied, “Yeah, some water and bit of soda.” Sergeant Renkenmeyer
asked specifically about alcoholic drinks, and Anderson replied, “A little bit” and “It’s
been over an hour.” Sergeant Renkenmeyer asked Anderson if he drove himself to the
gas station, and Anderson said that he did. Sergeant Renkenmeyer asked Anderson to
submit to a preliminary breath test (PBT), but Anderson refused.

The Director revoked Anderson’s license for a period of ‘one year due to
Anderson’s refusal to submit to a chemical test, in violation of Section 577.041, RSMo.
(Supp. 2015)./ Anderson filed a petition for review in the circuit court, which reversed
the revocation of Anderson’s driver’s license, finding that there was not substantial and
competent evidence to establish probable cause for believing Anderson drove his vehicle

while intoxicated. This appeal follows.

 

' The statute has since been amended, and currently the Director has authority to revoke a person’s license
under Section 302.574, RSMo. (Supp. 2017), rather than under Section 577.041, We will discuss the
version of Section 577.041 in effect at the time of Anderson’s revocation throughout this opinion.
Standard of Review

Our review of a court-tried case is governed by the principles set forth by the
Missouri Supreme Court in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). We
will affirm the judgment of the trial court unless there is no substantial evidence to
support it, it is apainst the weight of the evidence, or it erroneously declares or applies the
law. Id. We defer to the trial court’s factual findings. Sostman v. Dir, of Revenue, 363
S.W.3d 55, 57 (Mo. App. E.D. 2011). But if our inquiry is purely legal, we need not
defer to the trial court’s conclusion. See Hampton vy. Dir. of Revenue, 22 §.W.3d 217,
220 (Mo. App. W.D. 2000),

Discussion

The Director’s sole point on appeal is that the trial court erroneously reinstated
Anderson’s driver’s license due to a misapplication of the statutory definition of “drive.”
We agree,

According to Section 577.041.1, if a person under arrest or who has been stopped
refuses to submit to an officer’s request for a chemical test, that “person’s license shall be
immediately revoked upon refusal to take the test.” In order to uphold the revocation, as
relevant here, the Director must show (1) the person was arrested or stopped, (2) the
officer had reasonable grounds to believe that the person was driving a motor vehicle
while in an intoxicated condition, and (3) the person refused to submit to a chemical test.
Section 577.041.4. At issue on appeal is whether the Director established that Sergeant
Renkenmeyer had probable cause to believe Anderson was driving while intoxicated.

“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.” Hinnah v. Dir. of Revenue, 77 S.W.3d 616, 621 (Mo.
banc 2002). The determination of probable cause is based on “the information in the
officers’ possession prior to the arrest.” Id. The test is not precise, but rather depends on
“the particular facts and circumstances of the individual case.” Id.

The pertinent definition of “driving” is “physically driving or operating a motor
vehicle.” Section 577.001.2, RSMo. (Supp. 2015).?_ In Cox v. Director of Revenue, the
Missouri Supreme Court analyzed the terms “driving” and “operating” used in Section
577,001.2. 98 S.W.3d 548, 550 (Mo, bane 2003). The court, looking to dictionary
definitions, determined “drive” had the more narrow definition of “guid[ing a] vehicle
along or through,” whereas “operate” was defined more broadly as “to cause to function
usually by direct personal effort: work (~ a car).” Id.; see_also State v. Chambers, 207
S.W.3d 194, 197 (Mo. App. S.D, 2006) (discussing Cox).

Here, because Anderson’s vehicle was not moving, the issue is not whether he
drove, but whether he operated the car while intoxicated. The Cox court indicated that
“the bright-line test to operate a car [is] caus[ing] its motor to function. Once the key is
in the ignition, and the engine is running, an officer may have probable cause to believe
that the person sitting behind the steering wheel is operating the vehicle[,] even if that
person is sleeping or unconscious” Cox, 98 $.W.3d at 550, In Cox, the court found
probable cause existed where the parties had stipulated that the key was in the ignition,
the engine was running, and the alleged driver was sitting behind the steering wheel

asleep, Id.

 

? Section 577.001 has since been amended to move the definition of “driving” to subsection 9, and to
include “vessels,” but our discussion here focuses on the version of the statute in effect at the time of
Anderson’s revocation.

 
Anderson focuses on the Cox court’s use of the word “may,” which seems to
indicate that such facts do not necessarily constitute per se operation, and that probable
cause is still ultimately a determination based on the facts and circumstances of the
particular case. Hinnah v. Dir. of Revenue, 77 S.W.3d 616, 621 (Mo. bane 2002), While
this is true, the facts of this case are vittually identical to the facts in Cox? Anderson
points out that in Cox, there was no evidence regarding what time the driver had parked
the vehicle at the gas station, whereas here, both the gas station clerk and Anderson
himself stated the vehicle had been parked for about an hour. However, the Cox court
stated that a person found in the driver’s seat with the engine running may give probable
cause to find the person is operating the vehicle, not that the person had operated the
vehicle at some prior point. Cox, 98 S.W.3d at 550; see also State v. Barac, 558 §.W.3d
126, 130 (Mo. App. W.D, 2018) (discussing Cox, noting person “operates” vehicle if key
is in ignition and engine is running); Harper v. Director of Revenue, 279 S.W.3d 251,
257-58 (Mo. App. S.D. 2009) (“A vehicle with its engine running and its lights on is
functioning and gives rise to a reasonable inference that it is being operated by someone
at that point in time”),

Here, the motor of the vehicle was functioning at the time Sergeant Renkenmeyer
encountered it, and Anderson was passed out in the driver’s seat. The car was unusuaily
parked at the gas station, and Anderson admitted he had driven it there. Anderson does

not dispute the evidence supporting probable cause to find he was intoxicated at the time

 

> We are not persuaded by Anderson’s emphasis on the fact that Cox was decided on stipulated facts,
whereas here the facts are contested. The relevant facts of the engine running and Anderson sitting in the
driver’s seat are not contested in this case. We also are not persuaded by Anderson’s argument that the
Cox court inappropriately applied a burden to the driver because it was decided prior to White v. Director
of Revenue, which held that courts had erroneously given a presumption of validity to the Director’s
evidence and then required the driver to present evidence to rebut the presumption. 321 S.W.3d 298, 306
(Mo. banc 2010). Cox was decided on stipulated facts and there is no indication in the court’s opinion that
the court improperly imposed a burden on the driver or gave undue weight to the Director’s evidence.

 
Sergeant Renkenmeyer encountered him. Given the facts and circumstances in this case,
we find there was probable cause to believe Anderson operated the vehicle in an
intoxicated condition based on the information Sergeant Renkenmeyer had at the time.’
The trial court erroneously applied the law when, in order to find Anderson operated the
vehicle while intoxicated, the court indicated it required evidence of Anderson’s
intoxication one hour prior, when Anderson drove the cat. Such a standard of proof
renders the statute’s inclusion of the term “operation” meaningless, and we decline to
interpret Section 577.041 in such manner. The undisputed facts that Anderson was in the
driver’s seat of a running car that he had driven there, along with the trial court’s finding
that probable cause existed of Anderson’s intoxication at the time Sergeant Renkenmeyer
encountered him, constitute substantial evidence supporting a finding of probable cause
to believe Anderson operated the vehicle while intoxicated, Thus, we direct the trial
court to sustain the revocation of Anderson’s license upon remand, Point granted.
Conclusion
We reverse the judgment of the trial court, and we remand with directions to

sustain the revocation of Anderson’s driver’s license.

MA sxe
Gary. ner, Jr. \fudge

 

Kurt S. Odenwald, P.J., concur.
Colleen Dolan, J., concur.

 

* Anderson argues such a conclusion ignores Cox’s statement that such facts only may rise to the level of
probable cause, but we disagree. While we decide only the case before us, we nevertheless can envision
situations in which the circumstances surrounding an intoxicated person seated in a running vehicle, such
as a truck driver parked at a truck stop or person parked in an RV park, will not merit a reasonable
inference that the person was operating the vehicle while intoxicated. Cox suggests that it is necessary to
take into account more than the technical facts of the car running with an intoxicated person inside in the
determination of probable cause, and courts will continue to do so on a case-by-case basis.

 
