Driver needs to subpoena arresting officer in order to cross examine

Man argues in his DWI license revocation case that his request to speak first with his attorney should not have been considered by an officer to be a refusal to submit to a chemical test.

In this Western District of Missouri case, Defendant/Appellant appealed his judgment of the Circuit Court of Jackson County that had sustained the revocation of his driving privilege.

He raised one point on appeal that alleged there was insufficient evidence to establish that he had refused to submit to a chemical test because he requested to speak to an attorney, and the arresting officer improperly considered that a refusal.


A Kansas City Police Department Officer observed Appellant commit multiple traffic violations, including running a stop sign and striking a curb. Officer activated his lights and siren. Appellant was slow to respond but eventually pulled over and stopped. Officer immediately detected the strong odor of alcohol from Appellant’s breath and person. Appellant’s eyes appeared watery and bloodshot; his speech was heavily slurred and mumbled.

Officer asked Appellant to exit the vehicle and submit to field sobriety tests. Appellant exited the vehicle and Officer observed that he had difficulty balancing and was swaying and staggering. Officer observed signs of intoxication on the Horizontal Gaze Nystagmus test, the walk and turn test, and on the one leg stand test.

Appellant was placed under arrest and transported to East Patrol Division for further investigation. At the Patrol Division, Officer read Missouri’s Implied Consent Law to Appellant and asked him to submit to a breath test. According to Officer’s report, Appellant refused the test by remaining silent in response to Officer’s request.  His refusal to respond was deemed to be a refusal to submit to the test.

The Director of Revenue (“Director”) notified Appellant that his driving privilege was being revoked. Appellant filed a petition for review. The court held a trial on July 25, 2019 (“Trial”). Neither party subpoenaed the police officer to appear at Trial. The

Director called no witnesses and submitted its case on the administrative record which included the Alcohol Influence Report, which contained Officer’s narrative of the events, and Appellant’s driving record.

Appellant objected to the admission of the records, arguing that it violated Appellant’s right to cross-examine Officer. The circuit court overruled the objection and admitted the Director’s certified records. Appellant ‘s attorney then sought to make an “offer of proof” regarding what he would have asked Officer had the officer been present at Trial.

Appellant took the stand during his case and testified that he did not refuse to submit to a breath analysis test but, rather, had requested to speak with his attorney before consenting to the test and the officer wrongly deemed that a refusal. The circuit court found that Appellant had refused to submit to the test and entered judgment sustaining the revocation of Appellant’s driving privilege. Appellant then filed his appeal.


The Appellate Court affirmed the revocation with the following holding:

First, the Circuit court was free to disbelieve Collier’s testimony that he asked to speak with an attorney prior to submitting to a chemical test and, instead, found the officer’s narrative credible regarding the circumstances of the refusal. To the extent Collier wished to cross-examine the officer, it was incumbent on Collier to subpoena the officer to appear.

Second, the Director of Revenue met its burden of production by admitting administrative records which included the Alcohol Incident Report and the officer’s narrative into evidence.

The reasoning was that while the statute (302.312.1) addresses the “admissibility” of the records and not the “credibility” of the records.  Therefore, the Appellate Court ruled that the circuit court did not err in finding this evidence credible and therefore there was sufficient evidence to support the judgment that the Appellant refused to submit to a breath analysis test.

The opinion was written by Judge Gary D. Witt.

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