Stuart v. Arkansas Department of Finance & Administration

Cite as 2017 Ark. App. 139

ARKANSAS COURT OF APPEALS
DIVISION III
No. CV-16-519

Opinion Delivered March 8, 2017

THOMAS ELLIS STUART APPEAL FROM THE DREW
APPELLANT COUNTY CIRCUIT COURT
[NO. CV-2015-96-4]
V.

ARKANSAS DEPARTMENT OF HONORABLE DON GLOVER,
FINANCE AND JUDGE
ADMINISTRATION, LARRY
WALTHER, DIRECTOR
APPELLEE AFFIRMED

BRANDON J. HARRISON, Judge

Thomas Stuart appeals from the circuit court’s order affirming the Arkansas

Department of Finance and Administration’s Office of Driver Services’ (DFA) decision to

suspend his commercial driving privileges for one year and his noncommercial driving

privileges for six months. He argues that the police officer did not have reasonable grounds

for initiating a traffic stop and that the statement-of-rights form did not adequately inform

him of the consequences of refusing a chemical test. We affirm.

On 19 July 2015, Stuart was arrested and charged with driving while intoxicated

(DWI) and refusal to submit to chemical test. As a result, Stuart’s driver’s license was

suspended, and his commercial driver’s license (CDL) was disqualified. He requested an

administrative hearing to contest the suspension, and DFA conducted a hearing on 6 August

2015. The written summary from that hearing found as follows:

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Cite as 2017 Ark. App. 139

THIS CONTESTED HEARING WITH LICENSEE AND ATTORNEY
IS BEING HELD TO CONTEST PROBABLE CAUSE. PROBABLE
CAUSE IS NOT AN ISSUE TO BE DETERMINED BY THIS
HEARING OFFICER. WE FIND AGAINST THE LICENSEE AND
SUSTAIN THE SUSPENSION. CDL DISQUALIFIED 08-18-15 TO 08-
18-16 FOR DUI ALCOHOL/REFUSED TEST. NON COMMERICAL
SUSPENSION 08-18-15 TO 02-18-16.

Stuart timely sought de novo review by the Drew County Circuit Court.

On 4 December 2015, Stuart filed a motion to suppress evidence obtained as a result

of the traffic stop, which he argued was made without probable cause or reasonable

suspicion. DFA responded and first argued that while Arkansas had not addressed the issue,

the majority of jurisdictions have held that the exclusionary rule does not apply to

administrative or civil driver’s-license-suspension proceedings. DFA also argued that Ark.

Code Ann. § 5-65-402 (Supp. 2013) limits the scope of an administrative proceeding or

circuit court de novo appeal and does not authorize a petitioner to argue constitutional

issues, so Stuart should not be allowed to raise constitutional claims or request suppression

of the evidence. And finally, DFA asserted that Stuart’s argument was barred by collateral

estoppel and res judicata because he had “previously litigated the same issues of the officer

lacking probable cause resulting in an illegal traffic stop at Petitioner’s corresponding

criminal trial for the charges of DWI and Refusal to Submit.” Alternatively, if the circuit

court did find that the exclusionary ruled applied, DFA argued that the traffic stop was

supported by reasonable suspicion that Stuart had violated a traffic law.

The circuit court held a hearing on 16 December 2015. Stuart clarified that he was

challenging both the probable cause to arrest him for DWI and whether he had been

properly advised or warned that he would lose his driving privileges if he refused to submit

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to a chemical test. Stuart also explained that his criminal case was still ongoing in circuit

court. DFA reiterated that this was a civil case and that probable cause was not under

review. Stuart countered that the case was “quasi-criminal” due to the punitive nature of

his driving privileges being suspended.

Officer James Slaughter, a patrol officer with the Monticello Police Department,

testified that on 19 July 2015, he was traveling north on Highway 425 and was behind

Stuart’s vehicle. Slaughter said that they stopped at a red light at the intersection of

Highways 425 and 278; that after the light turned green, Stuart proceeded through the

intersection; and that Stuart momentarily drove his vehicle into the southbound turning

lane before veering back into his lane. Because of that, Slaughter stopped Stuart for careless

and prohibited driving. Slaughter approached Stuart’s vehicle, spoke to him, and could

smell alcohol on his breath; Stuart admitted having had a beer several hours earlier.

Slaughter asked Stuart to perform several field-sobriety tests, the results of which indicated

to Slaughter that Stuart was intoxicated. Slaughter also administered a preliminary breath

test (PBT), which indicated a .15 blood-alcohol content.

Slaughter arrested Stuart for DWI and transported him to the county detention

facility. Slaughter then read to Stuart the DWI statement-of-rights form and asked Stuart if

he understood it. Stuart said yes and initialed and signed the form. Slaughter next asked

Stuart if he would submit to a breath test, and Stuart said no and also initialed the “no”

answer on the form. According to Slaughter, Stuart said that he knew what the PBT result

was and that “he was not going to blow because he did not want to lose his CDLs.” Stuart

was subsequently booked for DWI and refusal to submit.

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On cross-examination, Slaughter confirmed that he read the following sections from

the statement-of-rights form to Stuart:

If you refuse to take a chemical test, none will be given, but you will subject
yourself to the penalties provided by law, which includes, but is not limited
to, the suspension or revocation of your driving privileges, and if you are a
commercial driver’s license holder, the disqualification of your commercial
driving privileges.

If you choose to take a chemical test, and the results reflect an alcohol
concentration of eight-hundredths (0.08) or more, or the presence of a
controlled substance, or any other intoxicant, your driving privilege will be
suspended or revoked, and if you are the holder of a commercial driver’s
license, your commercial driving privileges will be disqualified.

Slaughter also stated that he told Stuart that the breath test was different than the PBT

administered before, but Stuart declined to take the test.

Stuart testified that he worked for Grant Garrett Excavating and that he was required

to have a CDL. He claimed that during the traffic stop, he blew into the PBT device two

different times, which resulted in a .08 reading the first time and .12 or .13 the second time.

He said that he thought the test administered at the detention facility would be the same

type of test. Regarding the statements on the form that were read to him, he said that he

understood the first statement to mean that it was his option to take the test or not, and he

did not understand that his license would be suspended. He acknowledged that the second

statement meant that his license would be suspended if the result was over .08, so based on

the PBT results, he did not want to take the test and lose his CDL. Stuart claimed that

Slaughter never requested that he (Stuart) take a test at the detention facility.

The defense proffered a different statement-of-rights form in which the first

statement read “If you refuse, upon the request of a law enforcement officer, to take a

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chemical test, none will be given, but your privileges to drive, including your commercial

driving privilege if you have a commercial driver’s license, will be revoked, disqualified,

suspended or denied.” (Emphasis in original.) The form also included a sentence after the

statements that read, “You are now requested to take the test chosen by the officer.” Stuart

claimed that if he had seen the information as it was on this form, he would have taken the

test.

In closing arguments, Stuart’s counsel continued to argue that Stuart had not been

advised that his license would be suspended or disqualified if he refused the test; the form

only advised Stuart that by refusing he would be subject to penalties including the suspension

or revocation of driving privileges. Counsel also argued that Stuart had not committed the

violation of careless or prohibited driving, so the traffic stop itself was not based on probable

cause.

In its oral pronouncement, the court found,

[T]he officer had reason to stop the vehicle. The vehicle, I mean, it was, you
know, reasonable cause. . . . [A]s the vehicle pulled up and took off, it was
just on top of that line just for a short while. It could have been eight feet or
so. But it just doesn’t—and that’s sufficient for a police officer to stop
somebody.
And I do uphold the findings of the previous findings which have been
made in this case. And the reason—well, the true reason would be the refusal,
and—yeah, I’ll say refusal. That will be the Court’s ruling.

Defense counsel requested clarification, and the following exchange occurred:

MR. GIBSON: Is the Court ruling that the first initial paragraph on the rights
form complies with the state code that says he’s supposed to be
advised that he will lose his driving privileges by suspension or
disqualification by saying it’s subject to happen?

THE COURT: Well, it’s been that way for years, hasn’t it? I mean—

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MR. GIBSON: Well, the form doesn’t track the language of the statute. The
second paragraph does, but the first paragraph on refusal doesn’t
say he will lose—his license will be suspended or his commercial
driver’s license disqualified.

THE COURT: Well, that’s my finding. I find that—

MR. GIBSON: Find that that language it uses does tell him that.

THE COURT: Sure, I find that there is basis for the action taken by the officer,
you know, when you take into consideration the totality of the
circumstances. That will be the Court’s ruling.

The court entered a written order affirming the suspension of Stuart’s noncommercial

driving privileges and disqualification of his commercial driving privileges. Stuart has timely

appealed to this court.

Pursuant to Ark. Code Ann. § 5-65-402(c)(4)(A), the circuit court reviews the case

de novo and determines, based on a preponderance of the evidence, whether a ground exists

for revocation, suspension, disqualification, or denial of the person’s privilege to drive. On

appeal, we review the circuit court’s order and determine whether the circuit court’s

findings were clearly erroneous. Burdine v. Ark. Dep’t of Finance & Admin., 2010 Ark. 455,

379 S.W.3d 476. A finding is clearly erroneous when, although there is evidence to support

it, the reviewing court based on the entire evidence is left with a firm conviction that a

mistake has been committed. Id.

I. Reasonable Grounds

Stuart frames his first argument as an appeal from the circuit court’s denial of his

motion to suppress. While the circuit court did rule that the traffic stop was based on

reasonable grounds, it did not address suppression or whether the exclusionary rule applied,

so we likewise will not address these arguments. The failure to obtain a ruling on an issue
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precludes our review on appeal. Meador v. Total Compliance Consultants, Inc., 2013 Ark. 22,

425 S.W.3d 718. We note that Stuart concedes in his brief that this issue is not on appeal.

Stuart also disagrees with the circuit court’s finding that his crossing into the

southbound turning lane constituted “reasonable cause” for the stop. Stuart argues, as he

did below, that there is no evidence that he committed the offense of careless and prohibited

driving. The State counters that “[b]y allowing his vehicle to drift into the oncoming turn

lane, [Stuart] operated his vehicle in an inattentive manner and failed to maintain control of

his vehicle under Ark. Code Ann. § 27-51-104 [Repl. 2014].” The State argues that the

circuit court, as the finder of fact, determined that Slaughter had reasonable grounds to

inititate the traffic stop and that the court’s determination should be affirmed.

We hold that we need not address the validity of the traffic stop because such a

review is not contemplated by § 5-65-402. The statute provides that the administrative

hearing shall cover the issues of whether the arresting law enforcement officer had reasonable

grounds to believe that the person (1) had been operating a motor vehicle while intoxicated

or impaired or (2) “[r]efused to submit to a chemical test of the blood, breath, saliva, or

urine for the purpose of determining the alcohol concentration or controlled substance

contents of the person’s breath or blood and whether the person was placed under arrest.”

Ark. Code Ann. § 5-65-402(a)(8)(D)(i) & (ii). As noted by the hearing officer, probable

cause for the stop was not an issue to be decided administratively.

Likewise, the circuit court’s review is limited to “whether a ground exists for

revocation, suspension, disqualification, or denial of the person’s privilege to drive,” Ark.

Code Ann. § 5-65-402(c)(4)(A), and we review the circuit court’s order and determine

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whether the circuit court’s findings were clearly erroneous. Burdine, supra. Regardless of

the validity of the stop, there is no doubt that Stuart refused to submit to a chemical test,

and the circuit court found this refusal was the “true reason” for the disqualification and

suspension of Stuart’s commercial and noncommercial driving privileges. We hold that the

circuit court did not clearly err in making this determination.

II. Properly Informed

On this point, Stuart argues that he was not informed that his license would be

revoked or disqualified if he refused to submit to the chemical test. Instead, he says that he

was merely given the “option” of taking the test and that he “did not know that you would

‘automatically’ lose your license if you refuse the test; he thought that would be decided

later in court.” Stuart asserts that the circuit court gave “little or no thought” to whether

the statement-of-rights form complied with the statute and that “[t]he circuit judge’s failure

to expand the scope of the hearing to include the issue of whether [Stuart] was informed

that his driving privileges would, in fact, be affected if he refused to take the breath test was

clearly erroneous.”

The State counters that Stuart indicated that he understood his rights, as evidenced

by his initials and signature on the statement-of-rights form; that he was asked by Slaughter

if he would take the breath test, and that Stuart declined. The State argues that the circuit

court correctly determined that Stuart had been informed that he had the right to refuse

chemical testing and that his refusal would subject him to possible criminal penalties as well

as the suspension of driving privileges.

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We find Stuart’s argument unpersuasive. Stuart’s rights were explained to him, and

he indicated that he understood those rights. Any attempt to now argue that he did not

understand his rights is not well taken. The statement-of-rights form adequately

communicated the choices available and the possible consequences of those choices; and

Stuart made his choice.

Affirmed.

HIXSON and BROWN, JJ., agree.

John F. Gibson, Jr., for appellant.

David W. Parker, Arkansas Department of Finance and Administration, Office of

Revenue Legal Counsel, for appellee.

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