JOHN MATTHEW CLARK,                          )
                                             )
               Petitioner-Respondent,        )
                                             )
       v.                                    )              No. SD32777
                                             )
DIRECTOR OF REVENUE, STATE OF                )              Filed: April 22, 2014
MISSOURI,                                    )
                                             )
               Respondent-Appellant.         )

            APPEAL FROM THE CIRCUIT COURT OF CAMDEN COUNTY

                 Honorable Aaron G. Koeppen, Associate Circuit Judge

AFFIRMED

       This is an appeal from the reinstatement of driving privileges to John Matthew

Clark. The elements of a refusal to submit to a breathalyzer test are: (1) whether or not

the person was arrested or stopped; (2) whether or not the officer had reasonable grounds

to believe that the person was driving a motor vehicle while in an intoxicated or drugged

condition; and (3) whether or not the person refused to submit to the test. Section

577.041.4, RSMo Cum. Supp. 2010. The only element in dispute in this case is whether

the officer had reasonable grounds to believe that Clark was driving a motor vehicle

while in an intoxicated or drugged condition. In his sole point, the Director of Revenue


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(“the Director”) claims that the trial court erred as a matter of law in finding that the

trooper had insufficient evidence of “reasonable grounds” that Clark was driving a motor

vehicle while in an intoxicated condition. The Director is correct that hearsay statements

may be used by the trooper or law enforcement officer in the determination whether there

were reasonable grounds to arrest someone on suspicion of driving while intoxicated.

That statement of the law does not assist the Director in this case, however, because the

trial court did not simply find that the officer could not rely on hearsay statements. The

trial court also found: (1) that the hearsay evidence presented was neither credible nor

corroborated by any direct evidence that Petitioner was operating a motor vehicle; and (2)

that the Director failed to meet his burden. Prior to White v. Department of Revenue,

321 S.W.3d 298 (Mo. banc 2010), the Director might have prevailed.

       However, in light of White,

       “[o]nly if the trial court’s judgment is clearly erroneous will an appellate
       court reverse. This standard of review gives appropriate deference to the
       trial court’s ability to weigh the credibility of the witnesses, and
       acknowledges the inability of an appellate court to determine credibility
       from the lifeless pages of a record. Thus, if the trial court’s ruling is
       plausible in light of the record viewed in its entirety, this Court may not
       reverse it even though convinced that had it been sitting as a trier of fact, it
       would have weighed the evidence differently.”

White, 321 S.W.3d at 310-11 (quoting State v. Milliorn, 794 S.W.2d 181, 183-84)

(internal quotations omitted)). In view of our standard of review and the specific

credibility determination of the trial court, we must deny the Director’s point. The trial

court was free to disbelieve the trooper’s testimony that he was told that Clark was

driving the car that had been involved in a one-car accident. The judgment is affirmed.




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Nancy Steffen Rahmeyer, P.J. – Opinion Author

Daniel E. Scott, J. – Concurs

William W. Francis, Jr., C.J. – Concurs




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