                                         In the
                        Missouri Court of Appeals
                                 Western District
 BENJAMIN A. COLLIER,                         )
                                              )
                 Appellant,                   )   WD83072
                                              )
 v.                                           )   OPINION FILED: June 23, 2020
                                              )
 DIRECTOR OF REVENUE,                         )
                                              )
                Respondent.                   )

              Appeal from the Circuit Court of Jackson County, Missouri
                       The Honorable Kyndra J. Stockdale, Judge

      Before Division Two: Mark D. Pfeiffer, Presiding Judge, Alok Ahuja, Judge and
                                 Gary D. Witt, Judge


        Benjamin Collier ("Collier") appeals the judgment of the Circuit Court of Jackson

County sustaining the revocation of Collier's driving privilege. Collier raises one point on

appeal alleging that there was insufficient evidence to establish that Collier refused to

submit to a chemical test. We affirm.
                                Factual and Procedural Background1

         On January 18, 2019, Kansas City Police Department Officer Nathan Magers

("Officer Magers") observed Collier commit multiple traffic violations, including running

a stop sign and striking a curb. Officer Magers activated his lights and siren. Collier was

slow to respond, but eventually pulled over and stopped. Officer Magers immediately

detected the strong odor of alcohol from Collier's breath and person. Collier's eyes

appeared watery and bloodshot; his speech was heavily slurred and mumbled. Officer

Magers asked Collier to exit the vehicle and submit to field sobriety tests. Collier exited

the vehicle and Officer Magers observed that he had difficulty balancing and was swaying

and staggering. Officer Magers observed signs of intoxication on the Horizontal Gaze

Nystagmus test, the walk and turn test, and on the one leg stand test. Collier was placed

under arrest and transported to East Patrol Division for further investigation.

         At the Patrol Division, Officer Magers read Missouri's Implied Consent Law 2 to

Collier and asked him to submit to a breath test. According to Officer Magers's report,

Collier refused the test by remaining silent in response to Officer Magers's request.

Collier's refusal to respond was deemed to be a refusal to submit to the test.

         The Director of Revenue ("Director") notified Collier that his driving privilege was

being revoked pursuant to section 302.574. On January 25, 2019, Collier filed a petition

for review. The court held a trial on July 25, 2019 ("Trial"). Neither party subpoenaed



         1
          We view the evidence in the light most favorable to the trial court's judgment. Ridge v. Dir. of Revenue,
428 S.W.3d 735, 736 (Mo. App. W.D. 2014).
        2
          Section 577.020 through 577.041. All statutory citations are to RSMo 2016 as currently updated, unless
otherwise noted.

                                                         2
Officer Magers to appear at Trial. The Director called no witnesses and submitted its case

on the administrative record which included the Alcohol Influence Report, which contained

Officer Magers's narrative of the events, and Collier's driving record pursuant to section

302.312. Collier objected to the admission of the records, arguing that it violated Collier's

right to cross-examine Officer Magers. The circuit court overruled the objection and

admitted the Director's certified records. Collier's attorney then sought to make an "offer

of proof" regarding what he would have asked Officer Magers, had the officer been present

at Trial. Collier also took the stand during his case and testified that he did not refuse to

submit to a breath analysis test but, rather, had requested to speak with his attorney before

consenting to the test and the officer wrongly deemed that a refusal.

       The circuit court found that Collier had refused to submit to the test and entered

judgment sustaining the revocation of Collier's driving privilege. This appeal followed.

                                   Standard of Review

       Our review of a license revocation case is reviewed on appeal as any other court-

tried case. White v. Dir. of Revenue, 321 S.W.3d 298, 307 (Mo. banc 2010). "This Court

will affirm the trial court's judgment 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." Whitworth v. Dir. of Revenue, 207 S.W.3d 623,

624 (Mo. App. E.D. 2006) (citing Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976)).

"We defer to the trial court's determination of credibility." Id. "We accept as true all

evidence and inferences in favor of the prevailing party and disregard contrary evidence."

Id.

                                             3
                                          Discussion

       Collier's sole point on appeal alleges that the circuit court erred in upholding the

suspension of his driving privilege because there was insufficient evidence to support a

finding that he refused to submit to a breath test. More specifically, Collier contends that

the Director did not meet its burden of proof to demonstrate that he refused to submit to a

breath test because Collier contested the Director's evidence by "cross-examining" Officer

Magers, despite his absence from the Trial.

       The Director bears the burden of proving: (1) that the person was arrested; (2) the

arresting officer had reasonable grounds to believe that the person was driving while

intoxicated; and (3) the person refused to submit to a requested test. Howe v. Dir. of

Revenue, 575 S.W.3d 246, 250 (Mo. App. E.D. 2019) (citing section 302.575.4). Collier's

challenge is solely to the third element, the sufficiency of the evidence to establish that he

refused to submit to a breath test. Collier alleges that when Officer Magers asked him to

submit to a breath test, he did not remain silent but, rather, asked to speak with his attorney.

A driver's request to speak with an attorney is not a refusal.

       If a person when requested to submit to any test allowed pursuant to section
       577.020 requests to speak to attorney, the person shall be granted twenty
       minutes in which to attempt to contact an attorney. If, upon the completion
       of the twenty-minute period the person continues to refuse to submit to any
       test, it shall be deemed a refusal.

Section 577.041.3

       Collier contends that the Director failed to present sufficient evidence that he

refused to take the breath test and the Director had the sole burden of production at trial.

Section 302.535 places on the Director both the burden of production of evidence in a trial

                                               4
and the burden of proof as to each element. White, 321 S.W.3d at 312. "Generally, the

party not having the burden of proof on an issue need not offer any evidence concerning

it." Id. at 305 (quoting Stiff v. Stiff, 989 S.W.2d 623, 628 (Mo. App. S.D. 1999)). "If the

trier of fact does not believe the evidence of the party bearing the burden, it properly can

find for the other party." Id.; Tweedy v. Dir. of Revenue, 412 S.W.3d 389, 394 (Mo. App.

E.D. 2013) ("The trial court is free to disbelieve evidence and testimony, even if it is

uncontradicted, and this Court will defer to the trial court's determination."). Collier is

correct that he bore no burden of producing evidence at trial; he is not correct, however,

that the Director failed to meet its burden of proof.

       At Trial, the Director offered a certified copy of its records pursuant to section

302.312, as its sole evidence during its case in chief. Section 302.312.1 states:

       Copies of all papers, documents, and records lawfully deposited or filed in
       the offices of the department of revenue or the bureau of vital records of the
       department of health and senior services and copies of any records, properly
       certified by the appropriate custodian or the director, shall be admissible as
       evidence in all courts of this state and in all administrative proceedings.

The Director met its burden of production on the issues before the court when the record,

including the Alcohol Incident Report which factually addressed all necessary issues, was

accepted into evidence. "An arresting officer's narrative combined with the Alcohol

Incident Report constitutes sufficient evidence of a refusal to submit to a chemical test."

Hursh v. Dir. of Revenue, 272 S.W.3d 914, 916-17 (Mo. App. W.D. 2009) (quoting Tarlton

v. Dir. of Revenue, (Mo. App. E.D. 2006)). Once the Director met this burden of

production, if the circuit court finds this evidence credible the circuit court is entitled to



                                              5
find that Collier refused to submit to a breath test.3 Collier was free to, but not required to,

counter the Director's evidence.

         Collier contends that, despite the admission of the Director's certified records, the

Director did not meet its burden of proving that Collier refused to submit to a breath test

because Collier contested the Director's evidence of his refusal. At trial, Collier challenged

Officer Magers's narrative through "cross-examination" of the absent officer and by

testifying on his own behalf.

         Collier failed to subpoena the officer, asserting to the circuit court that Officer

Magers was "not under subpoena because, frankly, we don't know his first name." Instead,

at Trial, Collier made an "offer of proof" as to the questions he would have asked had

Officer Magers been present.                 Collier's assertion that Officer Magers could not be

subpoenaed because his first name was unknown was disingenuous. As the Director

argued to the trial court, Officer Magers's department and badge number were on his report,

making him easily identifiable. Notably, Collier makes no representations that he made

any actual attempts to locate or subpoena Officer Magers, only that his first name was

unknown.

         Collier appears to contend that because Officer Magers was not called as a witness

by the Director, allowing him to be cross-examined at Trial, the Director failed to meet its



          3
            By submitting its case solely on the written records, the Director bears the risk that the trial court may not
find that evidence credible or persuasive of the issues it must decide. If the records address each of the elements it is
required to prove, the Director meets its burden of production through the admission of the records such that it may
avoid a dismissal at the close of its case, however, the records alone do not require a finding for the Director as a
matter of law even if the driver offers no evidence in response. The statute addresses the "admissibility" of the
records not the "credibility" of the records.

                                                            6
burden of proof. However, it is well settled that the Director is permitted to submit its case

solely on the administrative record pursuant to section 302.312 without the live testimony

of the arresting officer. Doughty v. Dir. of Revenue, 387 S.W.3d 383 (Mo. banc 2013). In

Doughty, a father and son both individually sought a petition for review after the Director

revoked their driving privileges for refusing to take breath tests. Id. at 384. In their separate

trials, the director's sole evidence were the certified records. Id. The arresting officer was

not present at either trial, and the defense objected to the absence of the officer on multiple

grounds including that it violated the drivers' rights to confront and cross-examine the

witnesses against them. Id. at 385. Notably, as is the case here, the officer was not

subpoenaed by the Director or the defense. Id. at 385-86. Both drivers testified in their

own defense, challenging the arresting officer's narrative, claiming that they had not

refused to submit to a chemical test but requested permission to contact an attorney before

submitting to such a test. Id. at 386. The Supreme Court upheld the suspension of both of

the Doughtys' driving privileges stating that "[i]f the Doughtys desired to confront and

cross-examine the police officers who arrested them, they had the ability to subpoena the

officers to appear at their trials. They declined to exercise those rights by failing to

subpoena the officers as witnesses for their defense." Id. at 388.

       Like in Doughty, Collier did challenge the Director's evidence by testifying on his

own behalf at Trial, conflicting Officer Magers's assertion that Collier had refused to

submit to the breath test. Instead, Collier asserted that he had not refused but instead asked

to speak with an attorney prior to taking the test and, additionally, that he had never been



                                               7
read Missouri's Implied Consent Law. The circuit court was "free to disbelieve any, all, or

none of that evidence." White, 321 S.W.3d at 308.

         The Director met its burden of proving Collier refused a breath test through the

admission of the certified record and the trial court finding that evidence to be credible.

Collier was not required to counter this evidence, but did so through his own testimony.

To the extent he wished to question Officer Magers, it was incumbent on him to subpoena

him as a witness. 4 The circuit court had before it conflicting testimony regarding Collier's

refusal to submit to a breath test and it was free to believe or disbelieve either party's

evidence. Clearly from its findings, the court believed the factual statements in Officer

Magers' report and disbelieved Collier, and we must defer to this finding.

         The Director met its burden of producing sufficient evidence that Collier refused to

submit to a breath analysis test, and the circuit court did not err in so finding.

                                                  Conclusion

         For the reasons stated above, we affirm.


                                                      __________________________________
                                                      Gary D. Witt, Judge

All concur




          4
            We note that section 302.312 does not include the same seven day notice requirement of the intent to
admit the records without calling a live witness as is provided in the Uniform Business Records as Evidence Law
section 490.692. Section 490.692 puts the opposing party on notice that if they wish to cross examine a live witness
that they need to assure that witness's appearance at trial. The General Assembly chose not to include that safeguard
in regard to the admission of the Director's records.

                                                         8
