                  In the Missouri Court of Appeals
                                        Eastern District
                                                 DIVISION TWO



    TIMOTHY GALLAGHER,                                         )   No. ED108485
                                                               )
            Appellant,                                         )   Appeal from the Circuit Court of
                                                               )   St. Louis County
    vs.                                                        )
                                                               )   Honorable Virginia W. Lay
    MISSOURI DEPARTMENT OF REVENUE,                            )
                                                               )
            Respondent.                                        )   Filed: July 21, 2020


                                                    Introduction

           Timothy Gallagher (“Appellant”) appeals the trial court’s judgment upholding the

Director of Revenue’s (“Director”) revocation of his driving privileges under section 577.041 for

refusing to submit to a breath test.1 Appellant’s sole point on appeal is the trial court erred in

sustaining the revocation because there was insufficient evidence to support a finding of

probable cause to believe Appellant drove while intoxicated. He contends the Director failed to

present evidence as to Appellant’s condition while operating a motor vehicle at the time of the

accident.       He argues the arresting officer, Officer Robert Berry, did not witness Appellant

driving, the accident itself, or Appellant’s condition.


1
    All statutory references are to RSMo (2019), unless otherwise indicated.
        We find the trial court did not err in finding Officer Berry had probable cause to believe

Appellant was driving while intoxicated. The Director presented ample evidence to meet her

burden. Accordingly, we affirm.

                                  Factual and Procedural Background2

        Just before midnight on February 23, 2019, Officer Berry responded to a vehicle crash on

Breezeview Drive in Ballwin, Missouri. On arrival, Officer Berry observed a vehicle consumed

in flames, a broken mailbox, and two damaged vehicles in a driveway on Breezeview Drive.

Officer Berry spoke with two residents of the house, Appellant’s parents. Appellant’s father

stated Appellant was driving and crashed, sustaining an injury to his head. Appellant’s parents

stated Appellant was inside. Officer Berry continually asked to speak with Appellant, but

Appellant’s parents refused. Officer Berry asked Appellant’s parents if Appellant had been

drinking. Appellant’s father remained silent, but Appellant’s mother nodded her head in an up

and down motion. Moments later, Officer Berry overheard Appellant’s father tell a neighbor

Appellant was driving on Amber Jack Road, the adjacent road to Breezeview, before crashing

into the driveway.           Officer Berry’s supervisor then spoke with Appellant’s parents.

Approximately 15 minutes after Officer Berry’s arrival, Appellant’s parents allowed him to

speak with Appellant.

        Officer Berry noted scratches and a cut on Appellant’s face.                      Officer Berry noted

Appellant’s eyes were watery, glassy, and slightly bloodshot. Officer Berry also smelled a

moderate odor of alcohol emitting from Appellant’s breath. Officer Berry escorted Appellant to

an ambulance noticing Appellant was unsteady on his feet. Appellant then refused further

medical attention. Appellant was transferred to the police department. Officer Berry continued


2
  When the trial court does not issue specific findings of fact, the fact issues “shall be considered as having been
found in accordance with the result reached.” Mo. R. Civ. P. 73.01(c).


                                                         2
to smell alcohol emitting from Appellant’s breath at the station and noted Appellant slurring his

speech. Appellant consented to the Standard Field Sobriety Test. The results of the Horizontal

Gaze Nystagmus (“HGN”) test revealed Appellant’s eyes tracked equally and pupils were of

equal size. However, Appellant had no smooth pursuit in both eyes, distinct and sustained

nystagmus was observed at maximum deviation in both eyes, and nystagmus was detected in the

left eye prior to 46 degrees. During the Walk and Turn (“WAT”) test, Appellant did not touch

heel to toe on multiple steps, used his arms for balance, and took the incorrect number of steps.

During the One Leg Stand (“OLS”) test, Appellant put his foot down twice. The first attempt

ended in approximately eight seconds and his second attempt ended in approximately 15

seconds.

       Officer Berry advised Appellant of Missouri’s Implied Consent and requested a breath

sample. Appellant refused the breath test. Officer Berry read Appellant his Miranda Rights,

placing him under arrest. Officer Berry asked if Appellant was operating the vehicle at the time

of the crash. Appellant stated, “I guess so.” Appellant also stated he had not been drinking and

was not presently under the influence.

       Under section 577.041, Appellant’s license was revoked for one year.          Per section

302.574, Appellant filed a petition for review in the St. Louis County Circuit Court. The trial

court found for the Director. Appellant appeals. Appellant contends the trial court erred in

affirming his license revocation because there was insufficient evidence to support a finding of

probable cause to believe Appellant drove while intoxicated.

                                         Standard of Review

       A trial court’s judgment upholding an administrative revocation of driving privileges is

reviewed under the standard of Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). White v.




                                                 3
Dir. of Revenue, 321 S.W.3d 298, 307–08 (Mo. banc 2010). The trial court’s judgment will be

affirmed if there is substantial evidence to support it, it is not against the weight of the evidence,

and it does not erroneously declare or misapply the law. Id. “The evidence and reasonable

inferences drawn therefrom are viewed in the light most favorable to the trial court’s judgment

and all contrary evidence and inferences are disregarded.” Boggs v. Dir. of Revenue, 564 S.W.3d

693, 697 (Mo. App. W.D. 2018).

                                             Discussion

       Appellant’s sole contention is the trial court erred in its ruling because there was

insufficient evidence to support finding the officer had probable cause to believe Appellant drove

while intoxicated. Specifically, Appellant references a lack of evidence regarding Appellant’s

condition while operating a motor vehicle and a lack of evidence establishing the time of the

accident.

       Under Missouri’s implied consent law, “any person who drives on the public highways is

deemed to have consented to a chemical test to determine the alcohol or drug content of the

person’s blood.” Hinnah v. Dir. of Revenue, 77 S.W.3d 616, 619 (Mo. banc 2002). A person

has the statutory right to refuse such chemical testing. Id. However, under section 577.041.2,

“his or her license shall be immediately revoked upon refusal to take the test.” Such person may

request a post-revocation hearing in the circuit court. Mo. Rev. Stat. § 302.574.4 (2019). When

reviewing a license revocation under section 577.041, the trial court must only determine

whether: (1) the person was arrested; (2) the arresting officer had reasonable grounds to believe

the person was driving while intoxicated; and (3) the person refused to submit to the test. Mo.

Rev. Stat. § 302.574.4 (2019); Fick v. Dir. of Revenue, 240 S.W.3d 688, 690–91 (Mo. banc




                                                  4
2007); Hinnah, at 621–22.3 “The Director has the burden of proving all three elements by a

preponderance of the evidence.” Ayler v. Dir. of Revenue, 439 S.W.3d 250, 254 (Mo. App. W.D.

2014); See also Jarboe v. Dir. of Revenue, 434 S.W.3d 96, 99 (Mo. App. E.D. 2014). Here, there

is no dispute Appellant was arrested and refused to submit to a breath test.

        The issue is whether Officer Berry’s testimony and police report support the trial court’s

finding of reasonable grounds to believe Appellant was driving while intoxicated. “‘Reasonable

grounds’ is virtually synonymous with probable cause.” Hinnah, 77 S.W.3d at 621. “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.” Id. (quoting State v. Tokar, 918 S.W.2d 753, 767 (Mo. banc 1996)). Suspicion alone is

not enough to establish reasonable grounds, or probable cause, but absolute certainty is not

required. Rain v. Dir. of Revenue, 46 S.W.3d 584, 588 (Mo. App. E.D. 2001). “Whether there is

probable cause to arrest depends on the information in the officers’ possession prior to the

arrest.” Hinnah, 77 S.W.3d at 621.

        We find the Director presented sufficient evidence that Officer Berry had reasonable

grounds to believe Appellant drove while intoxicated.                 Appellant’s mother, when asked if

Appellant had been drinking, nodded her head “yes.” In addition, the odor of alcohol, slurred

speech, lack of balance, and glassy, bloodshot eyes are indicia of intoxication. Brown v. Dir. of

Revenue, 164 S.W.3d 121, 126 (Mo. App. E.D. 2002); Rain, 46 S.W.3d at 588. Officer Berry

noted a moderate smell of alcohol emitting from Appellant at first contact, during a medical

check, and at the police station. Officer Berry observed Appellant slurring his speech. While


3
  Appellant cites to section 302.505.1 which concerns license revocation of any individual “arrested upon probable
cause to believe such person was driving a motor vehicle” with a specified prohibited blood alcohol content
(“BAC”) enumerated by section 302.500. However, the present action concerns a license suspension of an
individual who refused BAC testing. Thus, the relevant statutes are section 577.041 and section 302.574.4.


                                                        5
Appellant was being escorted to the ambulance, Officer Berry noticed Appellant was unsteady

on his feet.     Officer Berry also noted Appellant’s eyes were watery, glassy and slightly

bloodshot.

        Appellant also scored five points on the HGN test. “The standard scoring system on the

horizontal gaze nystagmus test gives one point for eye movement indicative of alcohol influence

for each of the three tests for each eye.” Parrish v. Dir. of Revenue, 11 S.W.3d 652, 655 (Mo.

App. E.D. 1999). “The highest possible score is six points, while a score of four or more points is

an indication that a suspect is intoxicated.” Id. Appellant scored three points on the WAT test.

A score of two or more points is an indication the suspect is intoxicated.4 42 Mo. Prac., Missouri

DUI Handbook § 17:15. This evidence, when viewed in the light most favorable to the trial

court’s judgment, supports the court’s finding Officer Berry had reasonable grounds to believe

Appellant was driving while intoxicated.

        Appellant argues there could not have been probable cause to arrest him for driving while

intoxicated because Officer Berry did not observe Appellant operating his motor vehicle or the

accident. Nor did Officer Berry know of Appellant’s condition at the time of operating the

motor vehicle. Appellant argues there were no witnesses to the accident, nor a witness who

testified to his condition immediately after the accident. However, the Director does not need to

prove the person was driving or was actually intoxicated while doing so.5 Hinnah, 77 S.W.3d at

621–22. Instead, the officer may rely upon circumstantial evidence to logically infer the person

was driving. Auck v. Dir. of Revenue, 483 S.W.3d 440, 444 (Mo. App. E.D. 2016). An officer



4
  Appellant scored one point on the OLS test for putting his foot down before 30 seconds. A score of two or more
points is an indication the suspect is intoxicated. Mo. Prac., Missouri DUI Handbook § 17:21. Thus, we will not
use results of Appellant’s OLS test as a factor in determining probable cause of intoxication.
5
  Evidence to support a person not driving may be relevant to show the officer was unreasonable to believe the
person was driving while intoxicated. Hinnah v. Dir. of Revenue, 77 S.W.3d 616, 622 (Mo. banc 2002). “Beyond
that, it is irrelevant.” Id.


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may also rely on information provided by witnesses to establish probable cause to believe a

person was driving in an intoxicated condition. Hunter, 75 S.W.3d at 303.

       Appellant had scratches and injuries to his face, consistent with being in a crash. The

vehicle engulfed in flames in the yard where Appellant was found was registered to Appellant.

Appellant’s father told Officer Berry Appellant was driving and had an accident. Appellant’s

father informed Officer Berry Appellant was injured. Officer Berry also heard Appellant’s father

tell a neighbor Appellant was driving on Amber Jack Road before crashing into their driveway.

The physical evidence is consistent with a reasonable belief Appellant was driving erratically.

Officer Berry noted a broken mailbox, two damaged parked vehicles in the driveway, and

Appellant’s car engulfed in flames in the yard.

       Appellant also argues the Director failed to establish an estimated time of when the

accident occurred; thus, no probable cause could exist to arrest him for driving while intoxicated.

Despite Officer Berry’s vague testimony regarding the crash time, his Alcohol Inference Report

(“AIR”), admitted into evidence with no objection by Appellant, provided an estimated time of

the crash at 2359 hours. Since the trial court found for the Director and did not issue a specific

finding of fact on this issue, the trial court found Officer Berry’s testimony and report to be

credible. Under our standard, the time between the accident and Officer Berry’s first contact

with Appellant is approximately 16 minutes.

       Regardless, it is unnecessary for the Director to prove the exact time the accident

occurred to determine whether the arresting officer had probable cause to believe the suspect

drove while intoxicated. Trentmann v. Dir. of Revenue, 541 S.W.3d 39, 42 (Mo. App. E.D.

2018); Hager v. Dir. of Revenue, 284 S.W.3d 192, 197–98 (Mo. App. S.D. 2009) (court held it

was unnecessary for the Director to prove the exact time the accident occurred because the




                                                  7
evidence suggested accident occurred soon before the arresting officer arrived); Cain v. Dir. of

Revenue, 896 S.W.2d 724, 726 (Mo. App. E.D. 1995) (“Nothing in the statutes or case law

requires the Director to prove the time of an accident”). Here, Officer Berry arrived on scene to

observe a vehicle consumed in flames in a residential neighborhood with multiple witnesses

standing near the accident who identified Appellant as the driver. Thus, it was reasonable for the

trial court to believe Officer Berry arrived soon after the accident occurred.

        Appellant cites mostly criminal and inapposite cases to support his argument. Appellant’s

cites to criminal cases do not assist him. In a court tried criminal DWI prosecution, the State

must prove the defendant drove while intoxicated beyond a reasonable doubt. State v. Ollison,

236 S.W.3d 66, 68 (Mo. App. W.D. 2007). Conversely, in a civil administrative revocation of a

motorist’s driver’s license, the Director must prove the officer had reasonable grounds to believe

the defendant drove while intoxicated by a preponderance of the evidence. Ayler, 439 S.W.3d at

254. What must be proven, and the burden of proof required are different in a criminal action

versus this civil action.

        The civil cases Appellant properly cites are factually distinguishable. In Domsch, there

was a gap of one hour and forty minutes between a vehicle crash and the arresting officer’s

observation of the suspect’s intoxicated condition. Domsch v. Dir. of Revenue, 767 S.W.2d 121,

123 (Mo. App. W.D. 1989). Thus, the court found the facts, specifically the large time gap, were

insufficient to support a finding of probable cause to believe the suspect drove while intoxicated.

Id. In Stolle, the arresting officer arrived at the suspect’s home over a half hour after discovering

the suspect’s damaged vehicle. Stolle v. Dir. of Revenue, 179 S.W.3d 470, 472 (Mo. App. E.D.

2005). The officer smelled alcohol emitting from the suspect and her mother. Moreover, the

officer improperly administered the standard field sobriety test. Id. Thus, the court held “there




                                                 8
was insufficient circumstantial evidence to establish probable cause” to believe the suspect drove

while intoxicated. Id. Here, only 15 minutes passed between the crash and Officer Berry’s

arrival. As discussed above, there is significantly more circumstantial evidence supporting a

finding of probable cause to believe Appellant drove while intoxicated.

       We hold the trial court had substantial evidence before it to support its finding Officer

Berry had probable cause to believe Appellant was driving while intoxicated. The trial court did

not err in sustaining the Director’s revocation of Appellant’s driver’s license.

       Point denied.

                                                Conclusion

       The judgment of the trial court is affirmed.




                                              _______________________________
                                              Philip M. Hess, Presiding Judge

Kurt S. Odenwald, J. and
Lisa P. Page, J. concur.




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