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Smith v. Director of Revenue3/14/2000
rom admitting the respondent's BAC test result and satisfying the second prong of his prima facie case for suspension.
Having determined that the trial court erred in excluding the respondent's BAC test result in excluding Exhibit D on the basis that Guth had failed to comply with the court's discovery order, we must next determine whether it was otherwise admissible for purposes of satisfying the BAC requirement of section 302.505 to make a prima facie case for suspension of the respondent's license.
To establish a proper foundation for the admission of the result of an alcohol breath test to satisfy the BAC requirement of section 302.505, the Director was required to show that: (1) the test was performed by following the techniques and methods approved by the Department of Health; (2) by a person possessing a valid permit; and (3) using equipment and devices approved by the Department of Health. Section 577.020, RSMo Supp. 1998; Endsley, 6 S.W.3d at 159. "These foundational requirements are found in the Code of State Regulations in 19 CSR 25-30." Meurer, 984 S.W.2d at 876. There is no dispute and the record reveals that the Director satisfied these foundational requirements for admission of Exhibit D, which included the result of the respondent's breathalyzer test. Exhibit D reflected that the respondent had a BAC of .116 of one percent at the time of his arrest, which satisfied the second prong of the Director's prima facie case for suspension, probable cause to believe that at the time of the respondent's arrest, his BAC was ten-hundredths of one percent or more by weight of alcohol in his blood.
For the reasons stated, we find that the Director established a prima facie case for suspension of the respondent's license, shifting the burden to the respondent to rebut the same by a preponderance of the evidence, which he did not do. Endsley, 6 S.W.3d at 158. As such, the trial court erred in ordering the respondent's license reinstated without any showing by him rebutting the Director's prima facie case for suspension. Hurley, 982 S.W.2d at 696.
Conclusion
The judgment of the circuit court reinstating the driver's license of the respondent after it had been administratively suspended for DWI, pursuant to section 302.505, is reversed and the case is remanded for further hearing, in accordance with this opinion, to determine whether the respondent can rebut the Director's prima facie case for suspension of his driver's license.
Separate Opinion:
None
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