Missouri Court of Appeals Decision re: Troy Marlin — (Missouri Court of Appeals Western District)

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In the Missouri Court of Appeals Western District

WD 76689
OPINION FILED  March 25, 2014

Appeal from the Circuit Court of Lafayette County, Missouri
The Honorable Randall W. Shackelford, Judge
Before Division One: Cynthia L. Martin, Presiding Judge, Mark D. Pfeiffer, Judge and
Karen King Mitchell, Judge

Troy Hill (“Hill”) appeals from the trial court’s judgment sustaining the revocation of Hill’s driving privileges pursuant to section 577.041.   In his sole point on appeal, Hill claims that the trial court erred in sustaining the suspension of his driver’s license because there was insufficient evidence of probable cause to believe that Hill was driving a motor vehicle in an intoxicated or drugged condition. We affirm.

Factual and Procedural History

All statutory references are to RSMo 2000 as supplemented unless otherwise indicated. On March 5, 2013, Odessa Police Officer William Hotmer (“Officer Hotmer”) responded to a dispatch reporting that a black truck had been driving all over the roadway. The truck was reportedly stopped at a Shell gas station. Officer Hotmer saw the described truck leaving the gas station. The truck was being driven by Hill.
Officer Hotmer followed Hill. Officer Hotmer observed Hill make a wide turn crossing into the opposing lane of traffic, weave within his own lane, and travel off the roadway. As Hill approached a four way stop, Officer Hotmer observed him brake in a delayed manner before coming to an incomplete stop partially in the intersection. Officer Hotmer continued following Hill and observed him veer from the right shoulder across the roadway and into the opposing lane of travel. At that point, Officer Hotmer activated his emergency lights to initiate a traffic stop. Hill continued driving another block or block and a half at a slow rate of speed before pulling over.
Officer Hotmer made contact with Hill and asked him for identification and proof of insurance. Officer Hotmer observed that Hill’s eyes were watery, that his pupils were constricted in the low lighting, and that his speech was slurred and confused. Officer Hotmer observed several prescription pill bottles in Hill’s truck. Hill denied that he had been drinking alcohol. Hill reported to Officer Hotmer that he had taken a generic brand of Zoloft and another unknown medication.
When Officer Hotmer asked Hill to exit the vehicle he noticed that Hill’s motions were slow and that he was staggering, swaying, and had uncertain balance. Based on his collective observations, Officer Hotmer believed Hill was intoxicated by some type of drug or alcohol. During the stop, Officer Hotmer was advised by dispatch that Hill had an outstanding warrant for his arrest. Officer Hotmer arrested Hill on the outstanding warrant and for suspicion of driving while intoxicated by prescription medication.
Hill was transported to the Odessa Police Department where Officer Hotmer asked him if he had any disability that would prevent him from performing the standard field sobriety tests. Hill responded that he had a bad back. Consequently, Officer Hotmer asked Hill to submit to a n alphabet test, a counting test, and a finger dexterity test rather than the walk and turn and one leg stand tests. Hill passed all three tests. However, Officer Hotmer observed Hill’s movements and reactions were slow as he completed thefinger dexterity test. Officer Hotmer also had Hill face him and cover one eye.
Officer Hotmer observed that Hill’s pupils remained constricted and did not react to the change in light. Officer Hotmer requested the assistance of a drug recognition expert (a “DRE”), but none were available. Officer Hotmer believed Hill was intoxicated by something other than alcohol as he had not detected an odor of alcohol and because Hill’s eyes were constricted, not dilated. Officer Hotmer read Hill Missouri’s Implied Consent Warning and requested that Hill submit to a blood test. Hill asked to talk to an attorney before he submitted to a blood test. Officer Hotmer informed Hill that he could use a nearby room where phone books for Kansas City, Blue Springs and Lafayette County were available.
Hill said that he would talk to an attorney on a later date. Officer Hotmer explained to Hill that he could not wait to a later date to decide whether he was going to submit to a blood test. Section 577.041.1 provides that an officer’s request to submit to a chemical test or tests of the person’s breath, blood, saliva or urine “shall include the reasons of the officer for requesting the person to submit to a test and also shall inform the person that evidence of refusal to take the test may be used against such person and that the person’s license shall be immediately revoked upon refusal to take the test.”
Hill refused to submit to the blood test. Officer Hotmer issued Hill a notice of revocation of his driving privileges and a fifteen day driving permit. Hill filed a petition to review the revocation in the circuit court of Lafayette County. A hearing was held on May 23, 2013. On May 28, 2013, the trial court sustained the revocation of Hill’s driving privileges. Hill appeals.