                                         In the
                        Missouri Court of Appeals
                                 Western District
 BRYAN GOFORTH,                              )
                                             )
                Appellant,                   )   WD82604
                                             )
 v.                                          )   OPINION FILED:
                                             )   February 11, 2020
 DIRECTOR OF REVENUE,                        )
                                             )
               Respondent.                   )

              Appeal from the Circuit Court of Cass County, Missouri
                        The Honorable Jeffrey L. Cox, Judge

 Before Special Division: Zel M. Fischer, Special Judge, Presiding, Cynthia L. Martin,
                           Judge and Gary D. Witt, Judge


       Bryan Goforth ("Goforth") appeals from a judgment sustaining the Director of

Revenue's revocation of Goforth's driving privileges after he refused to submit to a

chemical breath test. Goforth argues that the Director of Revenue failed to adduce evidence

that he operated a motor vehicle on a public highway, and thus failed to prove he impliedly

consented to submit to chemical testing. Finding no error, we affirm.
                                Factual and Procedural Background1

        Shortly after 1:00 a.m. on February 24, 2018, the Belton Police Department received

a call from a Taco Bell employee about a man in a black GMC Yukon parked in the

restaurant's parking lot. The employee reported the man had previously fallen asleep in his

vehicle while in the restaurant's drive-through lane. When a law enforcement officer

arrived, the GMC Yukon was parked at the north end of the restaurant's parking lot, with

its headlights and taillights on, and the driver's window rolled down, even though it was

cold and raining. The officer observed a man, later identified as Goforth, asleep in the

driver's seat. The officer smelled a strong odor of intoxicants coming from within the

vehicle. Goforth was the vehicle's only occupant. The vehicle was registered to Goforth.

        The officer woke Goforth, at which point Goforth explained that he was waiting for

his food order from Taco Bell. Goforth denied falling asleep in the restaurant's drive-

through lane. The officer asked Goforth where he was coming from three times. Goforth

ultimately answered "home." The officer asked Goforth whether he had been drinking.

Goforth gave a rambling answer about having a series of drinks, including two glasses of

wine and 3-4 beers at Buffalo Wild Wings. The officer observed several indicators of

intoxication and arrested Goforth for driving while intoxicated.

        Goforth was transported to the Belton jail, where the officer read Goforth the

implied consent warning required by section 577.041.2.2 Goforth refused to submit to a


          1
            We view the evidence and reasonable inferences drawn therefrom in the light most favorable to the trial
court's judgment. Ayler v. Dir. of Revenue, 439 S.W.3d 250, 252 n.2 (Mo. App. W.D. 2014) (citing White v. Dir. of
Revenue, 321 S.W.3d 298, 302 (Mo. banc 2010)).
          2
            All statutory references are to RSMo 2016 as supplemented through February 24, 2018, unless otherwise
indicated.

                                                         2
chemical breath test. Goforth was given written notice of the revocation of his license and

privilege to drive pursuant to section 302.574.1. At the time of the revocation, Goforth had

a valid commercial class A license issued by the state of Missouri.

       Pursuant to section 302.574.4, Goforth filed a petition to review the revocation of

his license and privilege to drive. During the hearing on Goforth's petition, the Director of

Revenue submitted its certified records pertaining to the case, which included the section

302.574.1 revocation notice, the alcohol influence report, a copy of Goforth's Missouri

driver's license and the citation he received, the Belton Police Department's incident

reports, and Goforth's Missouri driver record. Goforth argued that the trial court should

set aside the Director of Revenue's revocation of his license because there was no evidence

that he had ever operated a motor vehicle on a public highway. The trial court issued its

findings of fact, conclusions of law, and judgment ("Judgment") on February 6, 2019,

sustaining the Director of Revenue's revocation of Goforth's license and privilege to drive.

       Goforth appeals.

                                    Standard of Review

       We review the trial court's judgment in a license revocation case as we do any other

court-tried civil case. Nix v. Dir. of Revenue, 573 S.W.3d 156, 159 (Mo. App. W.D. 2019).

"'[T]he 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.'" Id. (quoting White v. Dir. of Revenue, 321 S.W.3d 298, 307-08 (Mo. banc 2010)).

However, "'[w]hen facts are not contested and the issue is one of law, our review is de

novo, and no deference is given to the trial court's determination.'" Stiers v. Dir. of

                                              3
Revenue, 477 S.W.3d 611, 614 (Mo. banc 2016) (quoting Johnson v. Dir. of Revenue, 411

S.W.3d 878, 881 (Mo. App. S.D. 2013)).

                                                     Analysis

         Goforth argues that the trial court erred in affirming the Director of Revenue's

revocation of his license and privilege to drive because the Director of Revenue did not

present evidence that he had ever operated a motor vehicle on a public highway. Goforth

argues that this evidence is required before his consent to submit to chemical testing can

be implied, and that in the absence of implied consent, his refusal to submit to chemical

testing could not support revocation of his license.

         Section 577.020 addresses when consent is implied for chemical tests to determine

the alcohol or drug content of a person's blood. Relevant to this case,3 section 577.020.1(1)

provides:

         1. Any person who operates a vehicle upon the public highways of this
         state . . . shall be deemed to have given consent, subject to the provisions of
         sections 577.019 to 577.041, to a chemical test or tests of the person's breath,
         blood, saliva, or urine for the purpose of determining the alcohol or drug
         content of the person's blood pursuant to the following circumstances:

         (1) If the person is arrested for any offense arising out of acts which the
         arresting officer had reasonable grounds to believe were committed while the
         person was operating a vehicle . . . while in an intoxicated condition . . . .

(Emphasis added.) Section 577.041.2 provides:

         The request of the officer to submit to any chemical test shall include the
         reasons of the officer for requesting the person to submit to a test and also
         shall inform the person that evidence of refusal to take the test may be used
         against such person. If such person was operating a vehicle prior to such

         3
           Section 577.020.1 also addresses the operation of a vessel or an aircraft, and describes circumstances for
detention or stop if operating an aircraft, if under the age of twenty-one, or if involved in a collision or accident
resulting in a fatality or serious physical injury.

                                                           4
       detention, stop, or arrest, he or she shall further be informed that his or her
       license shall be immediately revoked upon refusal to take the test.

If revocation of a license following the refusal to submit to chemical testing is challenged,

section 302.574.4 describes what must be determined at a subsequent hearing. In a case

like Goforth's, where there has been an arrest based on the circumstances described in

section 577.020.1(1), section 302.574.4 provides:

       At the hearing, the court shall determine only:

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

(Emphasis added.) See Howe v. Dir. of Revenue, 575 S.W.3d 246, 250 (Mo. App. E.D.

2019) (citing section 302.574.4) ("[F]or a circuit court to uphold a driver’s license

revocation for failure to submit to chemical testing, the Director must show that: (1) the

driver was arrested; (2) the officer had probable cause to believe the driver was driving

while intoxicated; and (3) the driver refused to submit to the test.").

       Goforth admits that the Director of Revenue proved each of these essential elements

by a preponderance of the evidence. [Appellant's Brief, pp. 9-10] Goforth contends,

however, that the Director of Revenue failed to prove an additional essential element--that

he had ever operated a vehicle on a public highway. Goforth's argument is directly

contradicted, however, by the plain language of section 302.574.4 which provides that in a

hearing challenging revocation of a license for refusal to submit to chemical testing, a trial

court "shall determine only" the three essential elements identified in that section.

                                              5
       We recognize that our courts have consistently construed the third essential element

described in section 302.574.4--that a driver refused to submit to chemical testing--to

require proof that the refusal was valid. See, e.g., Howe, 575 S.W.3d at 251 (holding that

"an absolute prerequisite to any finding under Section 302.574.4 that [a driver] refused to

submit to [chemical testing] is a corresponding finding . . . that [the driver's] refusal [was]

valid"). Validity of refusal requires compliance with the statutory requirements attendant

to chemical testing. So, for example, our courts have held that a refusal is not valid where

an officer failed to give the implied consent warning required by section 577.041.2. Id. at

251-52. And our courts have held that when "a driver conditions a refusal on consulting

with an attorney, but is not given a reasonable opportunity to do so, the driver is not deemed

to have refused to submit to a chemical test for purposes of license revocation." Roesing

v. Dir. of Revenue, 573 S.W.3d 634, 637 (Mo. banc 2019) (emphasis omitted) (referring to

section 577.041.1's right to attempt to contact an attorney).

       Though not precisely articulated as such, Goforth's argument can be fairly read to

contend that refusal to submit is not valid unless it is established that a driver impliedly

consented to submit to chemical testing by "operat[ing] a vehicle upon the public highways

of this state" as provided in section 577.020.1(1). No Missouri case has directly addressed

whether a valid refusal to submit requires proof that the driver has ever operated a vehicle

upon the state’s public highways. Two Missouri cases have indirectly addressed the

subject, however.

       In Bertram v. Director of Revenue, 930 S.W.2d 7, 8 (Mo. App. W.D. 1996), a driver

was arrested after a police officer witnessed her driving her vehicle over a curb from a

                                              6
Wendy's restaurant, through a grass median, and into a Taco Bell lot. Because the driver

was not operating her vehicle upon a public highway at the time of her arrest, she argued

that her refusal to submit to chemical testing could not support suspension of her license.

Id. We concluded that proof a driver was operating a vehicle on a public highway at the

time of their arrest was not required. Id. at 9 ("[i]t is not necessary to allege or prove that

the vehicle was operated on a public road or highway" at the time of an arrest for driving

while intoxicated). We noted, however, that implied consent to submit to chemical testing

is generally predicated upon a person's operation of a vehicle on the public highways at

some point in time. Id. In that context, we noted that Bertram's prior driving record, which

established a speeding conviction, was sufficient to show that Bertram had "operated a

vehicle on public roadways," and could be treated "as a person who had impliedly

consented to submit to a chemical test." Id. Bertram did not address, however, whether

proof of implied consent was required to establish a valid refusal pursuant to section

302.574.4, as that argument was not made by Bertram.

       In Peeler v. Director of Revenue, 934 S.W.2d 329, 329 (Mo. App. E.D. 1996), a

driver was arrested in a parked car in the parking lot of an inn on suspicion of driving while

intoxicated. The driver consented to chemical testing after being informed that his license

would be suspended if he refused to submit. Id. The driver's license was suspended after

chemical testing established he was intoxicated. Id. The driver appealed and argued his

consent to submit to chemical testing was not valid because there was no evidence that he

had been "driving 'upon the public highways' at the time [he was] required to submit to

testing." Id. at 330. As was the case in Bertram, the Eastern District concluded in Peeler

                                              7
that "[w]hether [a] driver operated his vehicle on the public highways [at the time he was

arrested] and whether Director proved as much at trial was immaterial." Id. In other words,

it is not necessary to prove that a driver was "operat[ing] his vehicle on a public highway"

at the time the driver was arrested and "advised of the consequences of refusing to submit

to a chemical test." Id. at 331. Peeler did observe, however, that application for and

acceptance of a Missouri driver's license is sufficient to support the general finding that a

driver has impliedly consented to submit to chemical testing. Id. at 330-31. But, as in

Bertram, because the issue was not raised, Peeler did not address whether a valid refusal

to submit requires proof that a driver has impliedly consented to submit to chemical testing

by operating a vehicle on the public highways at some point in time.

       Here, Goforth makes the argument that was not made in either Bertram or Peeler.

Goforth acknowledges that section 577.020.1 "as written does not require proof that he was

driving on a public highway at the time of his arrest for driving while intoxicated."

[Appellant's Brief, p. 11] Goforth argues, however, that absent some evidence that he ever

operated a vehicle on the public highways, "consent is not implied and no sanction can be

imposed for refusing to submit." [Appellant's Brief, p. 11]

       We agree that as a general proposition, refusal to submit is not valid (the third

essential element of section 302.574.4) unless the driver has impliedly consented to

chemical testing. Pursuant to the plain language of section 577.020.1, consent to submit

to chemical testing cannot be implied unless the evidence supports an inference that a

driver has ever operated a vehicle on the public highways in Missouri.



                                             8
       We disagree, however, with Goforth's contention that the Director of Revenue's

evidence failed to support the inference that Goforth's refusal to submit was valid.

Substantial evidence permitted the trial court to conclude that Goforth impliedly consented

to chemical testing by operating a vehicle on the public highways in this state. First,

Goforth had a valid Missouri driver's license at the time of his arrest. The acceptance of a

Missouri driving privilege by applying for and receiving a driver's license permits the

inference that a driver is assuming all obligations associated with operating a vehicle on

the public highways, including impliedly consenting to chemical testing. See Peeler, 934

S.W.2d at 330-31. "The theory behind the Implied Consent Law is that the use of the

public highways is a privilege, not a right, and 'a motorist by applying for and accepting an

operator's license "impliedly consents" to submission to a chemical analysis of his blood

alcohol level when charged with driving while intoxicated.'" Id. at 331 (emphasis omitted)

(quoting State v. Trumble, 844 S.W.2d 22, 23 (Mo. App. W.D. 1992)). Stated another way,

it is reasonable to infer from a driver's application for and acceptance of a Missouri driver's

license that the driver will operate a vehicle on the public highways of Missouri after

receipt of that license.

       Goforth disagrees with this conclusion. However, even if we disregard that Goforth

possessed a valid Missouri driver's license, other substantial evidence permitted the

inference that Goforth's refusal was valid because he impliedly consented to submit by

operating a vehicle on the public highways in this state. Goforth was found in the driver's

seat of a running vehicle which was parked in the parking lot of a fast-food restaurant. The

vehicle was registered to Goforth, and Goforth was the vehicle's only occupant. Goforth

                                              9
told the responding officer he arrived at the Taco Bell from his home. Goforth's driver's

license showed a residence address in Pevely, Jefferson County, Missouri, more than 250

miles from the point of his arrest in Belton, Jackson County, Missouri.4 Goforth also told

the responding officer that he had been drinking earlier in the evening at a different

restaurant. The trial court could reasonably infer from this evidence that Goforth impliedly

consented to submit to chemical testing because he operated a vehicle on the public

highways in the state of Missouri at some point prior to his arrest.

         The trial court did not err in sustaining the Director of Revenue's revocation of

Goforth's driver's license and privilege to drive.

         Goforth's point on appeal is denied.

                                                   Conclusion

         The trial court's Judgment is affirmed.



                                                      __________________________________
                                                      Cynthia L. Martin, Judge


All concur




         4
         "We take judicial notice of the geographical location of cities in the State and the approximate distance
between them." See Maxwell v. City of Hayti, 985 S.W.2d 920, 922 (Mo. App. S.D. 1999) (citing Walsh v. Table
Rock Asphalt Constr. Co., 522 S.W.2d 116, 118 n.1 (Mo. App. 1975)).

                                                         10
