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Smith v. Director of Revenue3/14/2000
This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.
Missouri Court of Appeals Western District
Appeal From: Circuit Court of Platte County, Hon. Daniel M. Czamanske
Opinion Vote: REVERSED AND REMANDED FOR FURTHER HEARING. Smart, P.J., and Ellis, J., concur.
Opinion:
The Director of Revenue (the Director) appeals from the judgment of the circuit court reinstating the driver's license of the respondent, Stephen Robert Smith, after it had been administratively suspended for driving while intoxicated (DWI), pursuant to section 302.505.
In his sole point on appeal, the Director claims that the trial court erred in reinstating the respondent's driver's license because, on the admissible evidence, he made a prima facie case for suspension under section 302.505 in that the evidence established that there was probable cause to: (1) arrest the respondent for DWI; and (2) believe that, at the time, his blood alcohol concentration (BAC) was ten-hundredths of one percent or more by weight of alcohol in his blood.
We reverse and remand.
Facts
On April 5, 1997, Deputy Michael Stephens, a deputy sheriff for the Platte County Sheriff's Department, followed the respondent's motor vehicle, a Dodge truck, southbound on Interstate 29. As he was following the truck, he observed it weaving on the highway, almost striking another vehicle and a stranded motorist on the right shoulder. As a result, he pulled the truck over and made contact with the respondent.
While conversing with the respondent, Deputy Stephens smelled alcohol on his breath and observed that his eyes were glassy. He also saw a twelve-pack of beer on the seat next to the respondent and several beer cans on the floor of the truck. As a result of these observations, Deputy Stephens administered three field sobriety tests, the walk-and-turn test, the one leg stand test, and the gaze nystagmus test, which, in his opinion, the respondent failed. Following these tests, he advised the respondent that he was under arrest for DWI and transported him to the sheriff's department. While there, the respondent was read his Miranda rights and submitted to a breathalyzer test requested and performed by Deputy Stephens, which indicated that he had a BAC at the time of .116 of one percent.
Subsequent to his arrest, the Director notified the respondent that his driver's license had been suspended pursuant to section 302.505. The respondent filed a petition for administrative review of the suspension. After a hearing, the hearing officer sustained the suspension of the respondent's driver's license.
At some point in time, the respondent obtained a copy of his driving record as maintained by the Department of Revenue. Within this file was a "Datamaster Maintenance Report," dated March 22, 1997, which referenced use of "Guth Labs Lot # 96310." According to this report, the breath analyzer machine used to test the respondent's BAC on April 5, 1997, was last inspected on March 22, 1997, by Patrick Clark, a sergeant with the sheriff's department. The file also contained a copy of a "Certificate of Analysis" on stationery bearing the letterhead of Guth Laboratories, Inc., (Guth), for the simulator solution used by the sheriff's department to calibrate the breath analyzer machine used to perform the breathalyzer test given to the respondent. The certificate was signed by Guth's president and stated that " andom samples of Lot Number 96310 of Alcohol Reference Solution for Simulator were analyzed by gas chromatography and found to contain 0.1214 percent (w/vol) ethyl alcohol."
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