SYLVIA PAULETTA JOHNSON,                       )
                                               )
                     Respondent,               )
                                               )
       vs.                                     )     No. SD35904
                                               )
DIRECTOR OF REVENUE,                           )     FILED: July 9, 2019
                                               )
                     Appellant.                )

             APPEAL FROM THE CIRCUIT COURT OF RIPLEY COUNTY
                       Honorable Thomas D. Swindle, Judge
REVERSED AND REMANDED
Before Francis, P.J., Scott, J., and Sheffield, J.
       PER CURIAM. The Director of Revenue appeals a judgment setting aside
an administrative suspension of Respondent’s driving privileges. We reverse and
remand because the court incorrectly applied the law in finding insufficient
foundation to admit stipulated blood-alcohol content (BAC) test results.
                                    Background
       Respondent petitioned for judicial review of an administrative suspension
of her driving privileges due to driving with an excessive blood-alcohol level. The
case was tried on stipulated facts summarized below.
       Responding to a report of an injury crash, a highway patrol trooper found
Respondent’s car in the ditch with Respondent lying nearby, being attended to by
emergency responders. Respondent admitted she was driving at the time of the
crash and there were no other occupants in the vehicle. She stated that she had
consumed “way too many” intoxicants, but none since the crash. Respondent
exhibited a strong odor of intoxicants, had watery and bloodshot eyes, and slurred
her speech.
       The trooper attempted to administer a preliminary breath test but
Respondent did not produce a sufficient sample. Respondent was arrested for
DWI and given Miranda 1 and implied-consent warnings. 2 The trooper requested
a blood draw and, to quote the stipulation, Respondent “agreed to the test.” A
member of the ambulance crew tried three or four times to draw blood at the scene
but could not do so.
       Respondent was transported approximately 30 miles to the hospital, where
a nurse successfully drew a blood sample and turned it over to the trooper. Testing
of that sample showed Respondent’s BAC to be 0.182% by weight. That result was
certified in a lab report, referenced in the trooper’s alcohol influence report, and
stipulated to at trial.
       The trial court set aside the driving suspension, finding probable cause to
arrest Respondent for an alcohol-related traffic offense, but “an insufficient
foundation for admission of the test result, due to [] multiple tests in excess of the
number permitted by law and no implied consent.”
                                    Discussion
       The Director claims the quoted ruling was error. We agree.
       We typically review evidentiary rulings for abuse of discretion. Vernon v.
Dir. of Revenue, 142 S.W.3d 905, 909 (Mo.App. 2004). But when, as here, “the
issue before the trial court involves only stipulated facts and does not involve
resolution by the trial court of contested testimony … the only question before the
appellate court is whether the trial court drew the proper legal conclusions from
the facts stipulated.” White v. Dir. of Revenue, 321 S.W.3d 298, 308 (Mo. banc
2010). “In such cases, the issue is legal, and there is no finding of fact to which to
defer.” Id.



1Miranda v. Arizona, 384 U.S. 436 (1966).
2See § 577.041.2; Carvalho v. Dir. of Revenue, SC97394, slip op. at *12-16 (Mo. banc
March 19, 2019, as modified April 30, 2019).

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       The parties argue at some length whether multiple blood-draw attempts
should be treated the same or differently than our courts have treated multiple
attempts to collect a sufficient breath sample for breathalyzer testing. We need not
reach that issue because this is not an implied consent/refusal case.
       The record does not show that Respondent ever refused to submit requested
samples, whether breath or blood. Nor does Respondent argue, or the record
show, that she ever withdrew her affirmative consent to a blood draw or objected
to the blood draw at the hospital. Her suspension was based on her arrest and the
BAC test result, not implied consent and refusal to submit to testing. “Nothing in
Missouri law or in the due process clause required the officer to tell [Respondent]
the consequences of taking the breath test, to which [s]he had already had [sic]
consented by driving on Missouri’s roads.” Carvalho, slip op. at *2.
       The court did not indicate what law it thought would require exclusion of
Respondent’s stipulated test result. Chemical BAC analysis generally is admissible
in license-suspension cases. See § 577.037.1. The parties discuss § 577.020.2, yet
that expressly applies only to “implied consent to submit to the chemical tests
listed in subsection 1….” The parties do not cite, and we are not aware of, any law
that limits consensual attempts to obtain a sufficient sample. 3
                                     Conclusion
       On these stipulated facts, the trial court erred as a matter of law in refusing
to admit the BAC test results. We reverse the judgment and remand the case for
further proceedings consistent with this opinion.




3 Respondent points out that the inability to successfully draw her blood at the accident
scene was not her fault. It was not the trooper’s fault either. Absent some claim or
indication that Respondent withdrew her stated consent, we are reluctant to arbitrarily
limit consensual attempts to obtain an adequate sample. For one thing, to do so would
subject law enforcement’s ability to gather crucial evidence to the skill of the person
drawing the blood, sometimes under less than ideal roadside conditions.

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