Michael Hoyt, Appellant, v. Director of Revenue, Respondent.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Western District Case Style: Michael Hoyt, Appellant, v. Director of Revenue, Respondent. Case Number: WD57908 Handdown Date: 12/19/2000 Appeal From: Circuit Court of Clinton County, Hon. Stephen K. Griffin Counsel for Appellant: Bruce B. Brown and Timothy D. Tipton Counsel for Respondent: Evan J. Buchheim Opinion Summary: Michael Hoyt appeals from the circuit court's judgment sustaining the Director of Revenue's revocation of his driver's license. Hoyt contends that the circuit court erred in entering judgment in favor of the Director because 1) the definition of "driving" in section 577.001.1 RSMo Cum. Supp. 1996 requires more than "actual physical control" of a vehicle; and 2) based on the uncontroverted facts, the evidence merely established that Hoyt was in actual physical control of the vehicle, and did not establish that he was physically driving. AFFIRMED. Division IV holds: As a result of the 1996 amendment to section 577.001.1 RSMo 1994, "being in actual physical control of a motor vehicle" no longer constitutes "driving" or "operating." Hoyt's first point is granted to the extent that it contends that merely being in actual physical control of a vehicle no longer constitutes "driving" under section 302.505.1. The point is denied to the extent that it contends that the circuit court erred in entering judgment in favor of the Director. Hoyt's second point is also denied. Hoyt's acts of being in a car with the engine running and then turning off the car's engine constituted operation of the car within the meaning of section 577.001.1. Also, the State presented ample circumstantial evidence to establish that Hoyt started the car's engine and put it into operation. Citation: Opinion Author: Victor C. Howard, Judge

Opinion Vote: AFFIRMED. Spinden, C.J., and Holliger, J., concur. Opinion: Michael Hoyt appeals from the circuit court's judgment sustaining the Director of Revenue's revocation of his driver's license. Hoyt contends that the circuit court erred in entering judgment in favor of the Director because 1) the definition of "driving" in section 577.001.1(FN1) requires more than "actual physical control" of a vehicle; and 2) based on the uncontroverted facts, the evidence merely established that Hoyt was in actual physical control of the vehicle, and did not establish that he was physically driving. We affirm. Facts On March 7, 1999, Derek M. Bruns, a police officer for the City of Cameron, Missouri, received a dispatch that an intoxicated man was sitting in his vehicle in front of My Store, a convenience store. Within three minutes of receiving the dispatch, Officer Bruns arrived at the store and observed the vehicle in the parking lot. Bruns testified that Michael Hoyt was sitting behind the steering wheel with the engine running and the transmission in park. Hoyt told Bruns that he was waiting for a friend who was inside the convenience store. Bruns observed that Hoyt's speech was slurred and his eyes were glassy. Bruns also smelled a strong odor of intoxicants coming from Hoyt. Bruns asked Hoyt if he had had anything to drink that evening, and Hoyt stated that he had one beer. Bruns testified that he "didn't recognize any one that belonged to Mr. Hoyt inside the store." Bruns observed Hoyt trying to conceal a quart bottle of beer during their conversation. Hoyt turned off the car's engine and got out of the vehicle. Bruns administered four field sobriety tests, three of which Hoyt failed. Bruns arrested Hoyt for driving while intoxicated. Hoyt submitted to a chemical test of his breath, which indicated a result of .154 percent. The Director of Revenue revoked Hoyt's driver's license. Hoyt filed a petition for trial de novo in the Circuit Court of Clinton County. Following a hearing on his petition, the circuit court held that "based upon a preponderance of the evidence Petitioner is found to have been arrested upon probable cause to believe Petitioner was driving a motor vehicle while the alcohol concentration in his/her blood was .10% or more by weight." The circuit court upheld the revocation of Hoyt's driver's license. This appeal follows. Standard of Review "A trial court's judgment in a driver's license suspension or revocation case must be affirmed on review, 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." Soval v. Director of Revenue, 2 S.W.3d 854, 856 (Mo.App. W.D. 1999). "We view the evidence in the light most favorable to the judgment." Knipp v. Director of Revenue, 984 S.W.2d 147, 150 (Mo.App. W.D. 1998). Point I Hoyt's first point on appeal is that the circuit court erred when it entered judgment in favor of the Director, expressly finding that based on a preponderance of the evidence, Hoyt was arrested upon probable cause to believe that he was driving a motor vehicle while his blood alcohol concentration was .10 percent or more by weight, and implicitly finding that the definition of "driving" included actual physical control as set forth in the municipal ordinance. Hoyt argues that the term "driving" is not specifically defined under sections 302.500 to 302.545 RSMo. Rather, the definition is controlled by section 577.001.1, which defines "driving" as "physically driving or operating a motor vehicle" and excludes being in actual physical control of a vehicle. Section 302.505.1(FN2) provides as follows: The department shall suspend or revoke the license of any person upon its determination that the person was arrested upon probable cause to believe such person was driving a motor vehicle while the alcohol concentration in the person's blood, breath, or urine was ten-hundredths of one percent or more by weight, based on the definition of alcohol concentration in section 302.500, or where such person was less than twenty-one years of age when stopped and was stopped upon probable cause to believe such person was driving while intoxicated in violation of section 577.010, RSMo, or driving with excessive blood alcohol content in violation of section 577.012, RSMo, or upon probable cause to believe such person violated a state, county or municipal traffic offense and such person was driving with a blood alcohol content of two-hundredths of one percent or more by weight. "Section 302.505.1 does not define the term 'driving.' However, the case law has applied the definition of 'driving' set forth in section 577.001.1, the analogous criminal DWI statute, when considering license suspension or revocation cases under section 302.505.1." Weiland v. Director of Revenue, 2000 WL 1692509, *2, citing Krienke v. Lohman, 963 S.W.2d 11, 12 (Mo.App. W.D. 1998), and Chinnery v. Director of Revenue, 885 S.W.2d 50, 52 (Mo.App. W.D. 1994). Section 577.001.1 provides that "[a]s used in this chapter, the term 'drive', 'driving', 'operates' or 'operating' means physically driving or operating a motor vehicle." Prior to 1996, the definition of the terms in section 577.001.1 RSMo 1994 included "being in actual physical control of a motor vehicle." However, in 1996, "being in actual physical control of a motor vehicle" was deleted from the statute. "[A]s a result of the 1996 changes to the definitions of 'driving' and 'operating,' being in 'actual physical control' of a vehicle no longer constitutes 'driving' or 'operating.'" Weiland, 2000 WL 1692509, *2 (footnote omitted); see also State v. Cross, 2000 WL 1692297 n.14. Hoyt argues that he was arrested pursuant to the Cameron DWI ordinance, and that arguably that ordinance allows a person to be convicted of driving while intoxicated if he "is in actual physical control of a vehicle" while

intoxicated. However, as we recently held in Weiland, 2000 WL 1692509, *2 n.1, "to the extent an ordinance could be read to make it a crime to be in 'actual physical control' of a vehicle while having a blood alcohol level of .10% or higher by weight, an act which the Missouri legislature has determined no longer constitutes an offense, that ordinance must be considered null and void." Also, as noted in Weiland, 2000 WL 1692509, *2 n.1, Hoyt's argument concerning the Cameron ordinance does not affect our analysis because under the express language of section 302.505.1, a finding that the licensee was "driving" is necessary regardless of the statute or ordinance under which the licensee was arrested. Point I is granted to the extent that it contends that merely being in actual physical control of a vehicle no longer constitutes "driving" under section 302.505.1. The point is denied to the extent that it contends that the circuit court erred in entering judgment in favor of the Director. Point II Hoyt's second point on appeal is that the circuit court erred in entering judgment in favor of the Director because based on the uncontroverted facts, the evidence merely established that Hoyt was in actual physical control of the vehicle, and did not establish that he was physically driving. In Baptist v. Lohman, 971 S.W.2d 366, 367 (Mo.App. E.D. 1998), a licensee appealed the suspension of his driver's license for failing to submit to a breath alcohol test. He contended there was insufficient evidence to suspend his license under the statute defining "driving while intoxicated" because no one actually saw him driving his truck. Baptist, 971 S.W.2d at 367. Even though the store clerk did not actually see Baptist driving the truck, she also did not see anyone get into or out of the truck. Id. at 368. The officer saw that Baptist was seated behind the driver's wheel with the engine running, and the truck was in neutral. Id. The court found that "[a]n officer may have reasonable grounds to arrest for driving intoxicated, even when his evidence of 'actually driving' is based on circumstantial evidence." Id. Further, it found that "[b]ased on information from the store clerk, who witnessed only Baptist in the truck, the officer's observation of the condition of the truck, Baptist's position seated behind the wheel and the results of the field sobriety tests, the officer had reasonable grounds to make an arrest." Id. The court concluded that "[w]hile a motorist may no longer be found to be driving while intoxicated merely because he is in 'control' of a running automobile, Section 577.001 as amended still permits 'operating a motor vehicle' to be established by circumstantial evidence." Id. The suspension of Baptist's license was affirmed. Id. In State v. Cross, 2000 WL 1692297, an officer was dispatched to investigate a report of a person slumped over in the seat of a parked car. The officer found the car parked with its engine running and its headlights on. Id. The driver's door was open and Cross's legs were hanging out and touching the ground. Id. Cross was asleep or unconscious, lying

across the front seats, and no one else was in the vehicle. Id. An officer awakened Cross, and Cross then turned off the car's headlights and engine and removed the keys from the ignition. Id. When an officer asked Cross how much he had to drink, Cross responded, "Not enough." Id. An officer testified that Cross appeared intoxicated, but he did not conduct field sobriety tests. Id. Cross was convicted of driving while intoxicated, and he appealed. On appeal, and after a rehearing en banc, a bare majority of this court found that the legislature's deletion of "actual physical control" from section 577.001.1 made no difference in that case because the evidence established that Cross was "operating the motor vehicle."(FN3) Specifically, the majority found that Cross's acts of being in a car with the engine running and then turning off the car's engine and headlights constituted operation of the car, but even if that were not the case, the State presented ample circumstantial evidence to establish that Cross started the car's engine and put it into operation. Id. The Cross majority stated that the fact that Cross was not causing the car to move and the fact that his legs were hanging out the door were "of no consequence," and that "[h]e was still operating the car -- that is, causing it to function." Id. Similarly, in the present case, we find that Hoyt's acts of being in a car with the engine running and then turning off the car's engine constituted operation of the car within the meaning of section 577.001.1, based on the majority decision in Cross.(FN4) Also in accordance with Cross, we find that the State presented ample circumstantial evidence to establish that Hoyt started the car's engine and put it into operation. Therefore, the circuit court did not err in upholding the revocation of Hoyt's driver's license for driving while intoxicated under section 302.505.1. Point II is denied. The judgment of the circuit court is affirmed.(FN5) Footnotes: FN1. All statutory references to section 577.001.1 are to RSMo Cum. Supp. 1996, unless otherwise indicated. FN2. All statutory references to section 302.505.1 are to RSMo Cum. Supp. 1996. FN3. For a thorough discussion of the effect of the 1996 amendment to section 577.001.1 and the definitions of "driving," "operating," and "actual physical control," see Cross, 2000 WL 1692297. FN4. While Cross involved a conviction for driving while intoxicated under section 577.010.1 RSMo, the statutes concerning driving while intoxicated (section 302.505.1) and license revocation for driving while intoxicated (section 577.010.1) both rely on section 577.001.1 for their definitions of "drive" and "operate." FN5. Hoyt has filed with this court a motion for attorney's fees and costs. Hoyt's motion is denied. Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.