JEFFREY BROYLES,                                       )
                                                       )
                            Appellant,                 )
                                                       )
           vs.                                         )        No. SD32783
                                                       )        Filed: January 29, 2014
DIRECTOR OF REVENUE,                                   )
STATE OF MISSOURI,                                     )
                                                       )
                            Respondent.                )


                    APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY

                            Honorable Daniel W. Imhof, Associate Circuit Judge

AFFIRMED.

           On February 26, 2011, the Director of Revenue (“DOR”), revoked the driving privileges

of Jeffrey Broyles (“Broyles”), pursuant to section 577.041,1 for failure to submit to a breath test

after an incident wherein Broyles was charged with felony resisting by fleeing in a vehicle and

misdemeanor driving while intoxicated (“DWI”), and issued citations for speeding and DWI. On

May 3, 2013, a post-revocation hearing was conducted and the trial court found in favor of DOR.

We affirm the judgment of the trial court.



1
    All references to statutes are to RSMo Cum.Supp. 2010, unless otherwise indicated.
                               Factual and Procedural History

         The stipulated evidence, including a video with audio of the arresting deputy’s patrol

vehicle camera, introduced at trial, was as follows.

         On February 11, 2011, Officer Danny Fillmore (“Officer Fillmore”), of the Greene

County Sheriff’s Office, attempted to stop a vehicle driven by Broyles for exceeding the speed

limit.   Upon observing the Broyles’ vehicle speeding and passing other vehicles, Officer

Fillmore, using his vehicle’s radar unit, checked the speed of Broyles’ vehicle at 55 mph, which

was 15 mph over the speed limit.

         Officer Fillmore then attempted a traffic stop for the speeding violation and observed

Broyles begin to “accelerat[e] heavily.” Officer Fillmore activated his emergency equipment

and attempted to stop Broyles. Broyles attempted to elude Officer Fillmore by accelerating the

vehicle rapidly, speeding down snow- and ice-covered residential roads, and passing at least

three streets where he could have stopped safely prior to coming to his final stop. Upon stopping

the vehicle, Broyles immediately exited the vehicle and walked away from Officer Fillmore’s

patrol car toward a house, putting his hands into his pockets as if to retrieve something. Officer

Fillmore commanded Broyles to get on the ground and put his hands up, but Broyles refused to

comply with Officer Fillmore’s orders and continued walking toward the house.             Officer

Fillmore continued to give Broyles verbal commands to stop as he deployed his K-9 Patrol unit

dog, “Reiko.”

         As Officer Fillmore deployed Reiko, a passenger exited the passenger side of the vehicle

and began to walk toward him while Broyles continued walking toward the house against Officer

Fillmore’s instructions.   Officer Fillmore ordered the passenger to get on the ground and

repeatedly ordered Broyles to get on the ground and put his hands up or he was going to release


                                                 2
Reiko. The passenger made a movement toward Officer Fillmore at which time Officer Fillmore

drew his weapon and ordered the passenger to the ground. As Broyles continued to ignore

Officer Fillmore’s commands, Corporal Donaldson arrived on the scene to give assistance.

Broyles finally put his hands in the air, stating he had only been drinking and Officer Fillmore

should “chill out.”         Broyles was secured and placed in handcuffs.        Broyles emitted an

“overpowering odor of intoxicants.” Officer Fillmore read Broyles the Miranda2 warning, and

attempted to lead Broyles to a patrol vehicle. Broyles continued to resist Officer Fillmore,

cursing at him with slurred speech, and making racist remarks.

           Broyles was transported to the Greene County Jail for processing. At the jail, Officer

Fillmore attempted to place Broyles on a bench, but Broyles resisted, stood, and stared at Officer

Fillmore with his now visible watery, bloodshot, glassy, and staring eyes. Broyles continued to

physically resist Officer Fillmore’s commands by standing up and approaching him while his

back was turned, cursing at him, and spitting. Officer Fillmore noted Broyles had a “nauseating

odor of intoxicants” while Broyles was cursing in his face. Officer Fillmore read Broyles the

Miranda warning again at the jail.

           Officer Fillmore’s “Alcohol Influence Report” indicates that the initial contact with

Broyles was at 1:00 a.m., arrest was at 1:05 a.m., and at 1:30 a.m., Broyles was advised of the

“Implied Consent” law. Broyles then refused to submit to a breath test.

           After Broyles insisted he had not drank alcohol in three years, Officer Fillmore asked him

if he would like to attempt to perform standardized field sobriety tests and Broyles stated he

would, but later refused to do so when given the opportunity. Broyles was charged with felony




2
    Miranda v. Arizona, 384 U.S. 436 (1966).


                                                   3
resisting by fleeing in a vehicle and misdemeanor DWI, and was issued citations for speeding

and DWI. Thereafter, DOR revoked Broyles’ license for a year pursuant to section 577.041.

           On February 18, 2011, Broyles filed a petition for review of DOR’s revocation of his

license. A hearing was held before the trial court on May 3, 2013, but no recording was taken of

the hearing.         On appeal, the parties stipulated to a “Supplemental Legal File” containing

Exhibit 1, which the parties agreed was introduced as evidence to the trial court. Exhibit 1

contained “the original 15 day permit issued to [Broyles] by the arresting deputy, as well as the

alcohol influence report completed by the deputy, a copy of the original tickets that were issued,

the probable cause statement, and the narrative report authored by the deputy.” The trial court

viewed a video with audio of Officer Fillmore’s patrol vehicle camera and set a deadline for the

parties to provide “Suggestions.”3                The trial court then issued its judgment affirming the

revocation of Broyles’ license, noting the trial court “previously viewed the video of the arrest

and a stipulated and certified copy of the arrest report[.]” This appeal followed.

           Broyles, in his sole point relied on, claims the trial court erred in entering its judgment in

favor of DOR because the judgment is against the weight of the evidence, and erroneously

applies the law because Officer Fillmore had no reasonable grounds prior to arrest to believe

Broyles was driving while intoxicated, a required element in sustaining a driver’s license

revocation.

           The issue presented for our determination is whether Officer Fillmore had reasonable

grounds to believe Broyles was driving while intoxicated.




3
    The parties’ Suggestions were not included as a part of the legal file.

                                                              4
                                       Standard of Review

        In driver’s license revocation cases, as in any other court-tried civil case, “the trial court’s

judgment will be affirmed unless there is no substantial evidence to support it, it is against the

weight of the evidence, or it erroneously declares or applies the law.” White v. Director of

Revenue, 321 S.W.3d 298, 307-08 (Mo. banc 2010). We must have a firm belief the judgment is

wrong to set aside a judgment as “against the weight of the evidence.” Murphy v. Carron, 536

S.W.2d 30, 32 (Mo. banc 1976).

        “When the facts relevant to an issue are contested, the reviewing court defers to the trial

court’s assessment of the evidence.”        White, 321 S.W.3d at 308.         Conversely, “when the

evidence is uncontested . . . no deference is given to the trial court’s findings.” Id. at 308

(emphasis in original).

                 Evidence is uncontested if the issue before the trial court involves only
        stipulated facts and does not involve resolution by the trial court of contested
        testimony or a party has admitted in its pleadings, by counsel, or through the
        party’s individual testimony the basic facts of other [sic] party’s case. When the
        evidence is uncontested, the only question before the appellate court is whether
        the trial court drew the proper legal conclusions from the facts stipulated.

Harlan v. Dir. of Revenue, 334 S.W.3d 673, 677 (Mo.App. S.D. 2011) (internal quotations and

citations omitted) (emphasis in original). “Whether the admitted facts were sufficient to give

[the] Officer [] reasonable grounds to believe Driver had been operating his vehicle while

intoxicated is a legal question we review without deference to the conclusion reached by the

[trial] court.” Id.




                                                   5
                                            Analysis

              On review of a driver’s license revocation based on a refusal to submit to a
       [chemical test], there are only three issues to be determined: ‘(1) whether or not
       the person was arrested or stopped; (2) whether 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.’

Risner v. Director of Revenue, 404 S.W.3d 355, 358 (Mo.App. S.D. 2013) (quoting Hager v.

Director of Revenue State, 284 S.W.3d 192, 194 (Mo.App. S.D. 2009)). In the present case,

there was no dispute regarding the issues of: (1) whether Broyles was arrested or stopped, and

(2) whether Broyles refused to submit to the breath test. This leaves as the only issue presented

to the trial court whether Officer Fillmore had reasonable grounds to believe Broyles was driving

a motor vehicle while intoxicated.

       Broyles did not contest the evidence before the trial court. A hearing was held before the

trial court on May 3, 2013, but no recording was taken of the hearing. On appeal, the parties

stipulated to the exhibits introduced into evidence, which included the 15-day permit issued to

Broyles, Officer Fillmore’s Alcohol Influence Report, the citations issued, the probable cause

statement, and Officer Fillmore’s narrative report.      Broyles also provided this Court with

Exhibit 2, the DVD video and audio of Officer Fillmore’s patrol vehicle camera, which was

reviewed by the trial court. A review of the parties’ briefs makes it clear that Broyles’ argument

is purely a legal one as the evidence adduced was uncontested.

       Given this posture of the appeal, we only determine whether Officer Fillmore had

reasonable grounds to believe Broyles was driving while intoxicated. See § 577.041.4(2)(a).

Because the evidence is uncontested, the only question before this Court is whether the trial court

drew the proper legal conclusions from the facts. White, 321 S.W.3d at 308.




                                                6
       “Reasonable grounds” is synonymous with “probable cause” for arrest for DWI. White,

321 S.W.3d at 305 n.6.

       ‘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. . . . 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.’

Id. at 312 (quoting Guhr v. Dir. of Revenue, 228 S.W.3d 581, 584–85 (Mo. banc 2007)).

       When an officer observes an unusual or illegal operation of a motor vehicle and observes

indicia of intoxication upon coming into contact with the motorist, then probable cause exists.

Steele-Danner v. Dir. of Revenue, 229 S.W.3d 607, 610 (Mo.App. S.D. 2007). We must view

the facts as the situation would have appeared to a prudent, cautious, and trained police

officer. Id.

       Here, there were many facts supporting the conclusion that Officer Fillmore had probable

cause to believe Broyles had been driving while intoxicated. Officer Fillmore observed Broyles

exceeding the speed limit and driving recklessly. Even after activating his emergency lights and

siren, Broyles attempted to elude Officer Fillmore by driving at an excessive speed, and passing

at least three streets before stopping. Once he stopped the vehicle, Broyles got out and attempted

to go inside a house ignoring Officer Fillmore’s orders that he drop to the ground and put his

hands up.

       Broyles eventually dropped to the ground, put his hands in the air, and stated he had been

drinking. Officer Fillmore smelled “an overpowering” and “nauseating odor of intoxicants” on

Broyles. After placing Broyles in handcuffs, Broyles attempted to pull away from Officer

Fillmore, verbally cursed him, spoke with slurred speech, and made racial comments. When

they arrived at the jail, Broyles’ eyes were visible in the light and Fillmore observed they



                                                7
appeared watery, bloodshot, glassy, and staring. Even at the jail, Broyles continued to physically

resist Officer Fillmore’s commands, cursing at him, and spitting.          These uncontested facts

demonstrate Officer Fillmore had reasonable grounds to believe Broyles had been operating a

motor vehicle while intoxicated, and further support the trial court’s judgment confirming the

revocation of Broyles’ license.

       Broyles argues he was arrested upon exiting his vehicle, and “there was little to no

evidence of intoxication prior to the arrest in order to establish probable cause[.]” Broyles’

position misstates Missouri law. Under section 577.041, an arresting officer does not necessarily

have to “have reasonable grounds to believe a driver was driving while intoxicated before he

makes the initial stop; rather, ‘[i]t is sufficient if, after the stop, the arresting officer observes

sufficient indicia of intoxication to reasonably believe the driver was driving a motor vehicle

while intoxicated.’” Warren v. Dir. of Revenue, No. SD32501, 2013 WL 6493712, at *3

(Mo.App. S.D. Dec. 11, 2013) (quoting Gelsheimer v. D.O.R., 845 S.W.2d 107, 108 (Mo.App.

W.D. 1993)).

       The “initial stop” of Broyles was clearly for acts other than DWI. When Broyles failed to

stop, even after Officer Fillmore activated his emergency lights and siren, Officer Fillmore

continued to follow Broyles and observed him driving recklessly at an excessive speed. Then,

when Broyles finally stopped, he attempted to flee, resisted arrest, and ignored Officer Fillmore’s

instructions.

       The fact Officer Fillmore observed Broyles commit other offenses; i.e., felony resisting

by fleeing in a vehicle and speeding, and proceeded to arrest Broyles for those offenses, does not

negate the observations he made after stopping Broyles. This Court has noted that “[n]othing in

section 577.014 indicates that the person must be arrested or stopped specifically for DWI.”



                                                  8
Dixon v. Director of Revenue, 118 S.W.3d 302, 305 (Mo.App. S.D. 2003). Under Dixon, an

arresting officer may develop reasonable grounds to arrest a person for DWI even after that

individual has been placed under arrest for other acts. Id. (noting probable cause to arrest for an

alcohol-related traffic violation may be developed after the officer stops the motorist, “regardless

of whether the officer had probable cause for the stop.”).

           Here, Broyles was arrested at 1:05 a.m., was read the Miranda warning, and taken to the

Greene County Jail. Officer Fillmore had reason to arrest Broyles for acts other than DWI when

he was arrested at 1:05 a.m.

           Once at jail, Broyles was again read the Miranda warning at 1:30 a.m., but this time was

also read Implied Consent, after Officer Fillmore smelled a nauseating odor of intoxicants from

Broyles; observed Broyles’ watery, bloodshot and glassy eyes; listened to Broyles’ foul and

racial slurs; and observed him spitting on the floor.4 The Implied Consent read to Broyles at

1:30 a.m. specifically stated: “You are under arrest and I have reasonable grounds to believe you

were driving a motor vehicle while you were in an intoxicated or drugged condition[.]” Broyles

was also then issued a citation for operating a motor vehicle while in an intoxicated condition,

and charged with misdemeanor driving while intoxicated.

           After the first arrest and bringing Broyles to jail, probable cause to further arrest Broyles

for DWI was observed.              Broyles smelled of intoxicants, was combative, verbally abusive,

spitting, and his eyes indicated he was intoxicated. These factors, along with his actions prior to

the first arrest, gave Officer Fillmore reasonable grounds to believe that Broyles was driving

while intoxicated.

           If we were to accept Broyles’ argument, it would mean an officer that arrests an

individual for other criminal violations, could not later have probable cause to also arrest the
4
    Officer Fillmore then affixed a “spit hood” to Broyles’ head and advised him not to spit anymore.

                                                           9
individual for DWI, even if the individual made a complete confession, simply because the

evidence of intoxication was not evident to the officer until after he arrested the individual for

the other criminal violations. Broyles’ argument is that once the officer comes close to the

suspect, it is too late to establish “probable cause” to arrest for DWI simply because the officer

already placed the individual under arrest for another charge. We decline to accept Broyles’

argument in that it is not consistent with Warren and Gelsheimer, and is too narrow an

interpretation of probable cause on this record.

         The record before this Court shows that at the time of Broyles’ second arrest,5 Officer

Fillmore’s observations were more than sufficient to reasonably believe Broyles was driving

while intoxicated. It is sufficient then that Officer Fillmore observed “indicia of intoxication” in

this case after the stop and arrest for other criminal violations.                    The record supports the

conclusion that Officer Fillmore had reasonable grounds to arrest Broyles for DWI, and the trial

court’s judgment was not against the weight of the evidence.

         For all of the reasons stated above, Broyles’ point is denied. The trial court’s judgment is

affirmed.


WILLIAM W. FRANCIS, JR., C.J. - OPINION AUTHOR

NANCY STEFFEN RAHMEYER, P.J. - Concurs

DANIEL E. SCOTT, J. - Concurs

5
  Broyles also argues there was only one arrest in this case, which was immediately after Broyles was stopped. We
disagree. Broyles was clearly arrested at the scene of the stop. Section 544.180, RSMo 2000, provides “arrest is
made by an actual restraint of the person of the defendant, or by his submission to the custody of the officer[.]” The
first arrest took place when Broyles was restrained by Officer Fillmore and placed in handcuffs.

         The second arrest took place when Officer Fillmore read Broyles the Miranda warning, the Implied
Consent, announced Broyles was under arrest for DWI and issued Broyles a citation for DWI. See Dixon, 118
S.W.3d at 308 & n.8 (holding “[t]he recitation of Miranda warnings, an announcement that he was under arrest for
DWI, a reading of the implied consent form, and the issuance of a citation for DWI were sufficient to effectuate
[Broyles’] arrest under the circumstances faced by [O]fficer [Fillmore].”). At this point, Broyles was physically
restrained in handcuffs at the jail.

                                                         10
