Gary Lee Baker, Petitioner/Appellant, v. Director of Revenue, State of Missouri, Respondent/Respondent.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Eastern District Case Style: Gary Lee Baker, Petitioner/Appellant, v. Director of Revenue, State of Missouri, Respondent/Respondent. Case Number: No. 70376 Handdown Date: 05/13/1997 Appeal From: Circuit Court of St. Charles County, Hon. Nancy L. Schneider Counsel for Appellant: Counsel for Respondent: Opinion Summary: Petitioner appeals from the judgment denying his petition to review the suspension of his driving privileges by the Director of Revenue for refusal to submit to a chemical test of the alcoholic content of his blood. We affirm. AFFIRMED. Division One holds: A portable breathalzyer test taken by petitioner to establish probable cause for his arrest, as authorized by section 577.021, RSMo 1994, did not constitute a test within the provisions of section 577.020, RSMo 1994. Thus, suspension of petitioner's driving privileges for his subsequent refusal to submit to a test within the provisions of section 577.020, RSMo 1994, was proper under section 577.041, RSMo 1994. Citation: Opinion Author: James R. Reinhard, Judge Opinion Vote: AFFIRMED. Presiding Judge Dowd, Jr. and Judge Gaertner concur. Opinion: Petitioner appeals from the judgment denying his petition to review the suspension of his driving privileges by the Director of Revenue (Director) for refusal to submit to a chemical test of the alcoholic content of his blood. We affirm. The record reveals that on December 21, 1995, Trooper Harold Smith stopped petitioner's car for tailgating another vehicle. Trooper Smith smelled alcohol on petitioner's breath and asked him to perform some

field sobriety tests. Petitioner admitted that he had been drinking, and he subsequently failed the gaze nystagmus test, the walk and turn test, and the one leg stand test. Trooper Smith then asked petitioner to blow into a portable breathalyzer machine, but petitioner did not "supply the machine with enough air." Petitioner repeated the test, and Trooper Smith arrested him for driving while intoxicated. Trooper Smith transported petitioner to the local sheriff's department and read the Implied Consent Law to him. Petitioner refused to take the breathalyzer test, and his license was subsequently revoked under section 577.041, RSMo 1994.(FN1) In his sole point on appeal, petitioner contends that the judgment sustaining the suspension of his driving privileges "was erroneous in that the only evidence in the case showed that the police officer administered two so called breathalyzer tests and only on the third breathalyzer test did [petitioner] refuse." Section 577.020.1 provides: [A motorist] shall be deemed to have given consent to . . . a chemical test or tests of his breath . . . for the purpose of determining the alcohol or drug content of his blood if arrested for any offense arising out of acts which the arresting officer had reasonable grounds to believe were committed while the person was driving . . . while in an intoxicated or drugged condition. . . . Under section 577.020.2, implied consent is "limited to not more than two such tests arising from the same arrest . . . ." The driving privileges of motorists who refuse "to submit to any test allowed under section 577.020" will be subject to revocation. Section 577.041. In contrast to section 577.020, section 577.021 permits officers to give breathalyzer tests to motorists prior to arrest. The results are admissible as "evidence of probable cause to arrest and as exculpatory evidence," but they are not "admissible as evidence of blood alcohol content." Id. Tests performed under this section are not subject to the provisions of section 577.020, such as the arrest requirement. Id. The portable breathalyzer test given to petitioner prior to his arrest fell within the provisions of section 577.021. The test was performed only to establish probable cause for the arrest, and the results were not admissible as evidence of petitioner's blood alcohol content. A test administered with a portable breath analyzer does not constitute a test within the scope of section 577.020. Justice v. Director of Revenue, 890 S.W.2d 728, 731 (Mo. App. W.D. 1995). Under the implied consent law, petitioner was deemed to have consented to two tests within section 577.020. Petitioner submitted to no tests under that section. Because petitioner refused to take a breathalyzer

test within the provisions of section 577.020, his driving privileges were properly revoked under section 577.041. See Justice, 890 S.W.2d at 731. Judgment affirmed. Footnotes:

1. All statutory citations are RSMo 1994.

Separate Opinion: This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.