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Krieger v. Director of Revenue3/28/2000
Appeal From: Circuit Court of Franklin County, Hon. John Berkemeyer
Opinion Vote: REVERSED AND REMANDED. Rhodes Russell, C.J., and Crist, Sr. J., concur.
Opinion:
The Director of Revenue ("Director") appeals the judgment of the Circuit Court of Franklin County setting aside the revocation of Matthew Krieger's ("Driver") driving privileges. We reverse and remand with directions to reinstate the revocation.
On November 13, 1998, Deputy Trevor Wild of the Franklin County Sheriff's Department was stopped at the intersection of Highway 50 and Highway UU when he observed Driver make a left turn off of Highway 50 and pass between the right side of his patrol car and the stop sign. Deputy Wild pulled Driver over and noticed Driver stumble as he exited his vehicle. He smelled intoxicants on Driver's breath and observed that his eyes were bloodshot and his speech slurred. Deputy Wild gave Driver a number of field sobriety tests, all of which Driver failed. Driver was then arrested for driving while intoxicated, handcuffed, and transported in the back of the patrol car to the police station.
At the Union police station, Officer Jim Wells informed Driver of Missouri's implied consent law and administered a breath analysis test with Driver's consent. The result of the test indicated Driver had a blood alcohol content of .238% by weight.
Director revoked Driver's driving privileges pursuant to Section 302.505, et seq. RSMo Supp. 1998, for driving while intoxicated with a prior alcohol-related enforcement contact within the preceding five years on his driving record. The revocation was upheld after an administrative hearing and Driver sought a trial de novo in circuit court.
At the trial, Deputy Wild testified to the circumstances that led to his conclusion that Driver was impaired and his subsequent arrest. He stated that he called in the traffic stop of Driver's vehicle at 10:53 p.m. and made contact with Driver within two minutes thereafter. He estimated that approximately 20-25 minutes were spent conducting the field sobriety tests and that Driver's arrest occurred thereafter. Deputy Wild testified that Driver was then transported in the back of his patrol vehicle, which contained no liquor or cigarettes, to the police station. Deputy Wild stated that he was with Driver from the time of the stop until the breath test was administered at the police station, and that Driver did not put anything in or take anything out of his mouth, nor did he smoke or vomit during this period.
Officer Wells also testified at trial for Director. He testified that he had a Type III permit to operate the BAC verifier and that he performed the actual test on Driver. He identified the Department of Revenue records concerning a maintenance check performed on the BAC verifier on November 2, 1998, which included: 1) the affidavit of the custodian of records of the Union Police Department, 2) the maintenance report on the BAC verifier, 3) the certificate of analysis from Guth Laboratory, 4) the calibration test and 5) a copy of the permit for the operator of the instrument. Pursuant to the testimony, these records were admitted into evidence as Exhibit A.
He also identified the BAC log that he filled out concerning the breath test administered to Driver and was permitted to testify over a best evidence objection that the BAC verifier test result was .238%. However, the log was subsequently not admitted into evidence because a copy had not been provided to Driver's counsel prior to trial.
Officer Wells also identified Exhibit C as the checklist that he followed for the test administered to Driver, and described the pro
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