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Green v. Director Of Revenue11/9/2004
properly. Another breathalyzer test was administered at the Bernie police station. The results indicated a blood alcohol content of .207%.
Officer Mills was the only witness called at trial. The trial court admitted into evidence Respondent's driving record, the offense citation, the alcohol influence report, the BAC DataMaster Evidence Ticket and certificate of analysis, and the offense/incident and arrest reports. Counsel for Respondent stipulated to the proper administration of the breathalyzer test and stated he had no objection to the admission of Respondent's driving records and relevant business records provided by Director.
Upon review of a trial court's reinstatement of driving privileges following suspension of the same pursuant to § 302.505, RSMo Supp.2002, this court will affirm the judgment of the trial court unless there is no substantial evidence to support it, the judgment is against the weight of the evidence, or it erroneously declares or applies the law. Reckner v. Fischer, 121 S.W.3d 296, 300 (Mo.App.2003). Under this standard, however, we cannot affirm a judgment of the trial court by merely disregarding all uncontradicted evidence supporting Director's contention that Director established a prima facie case by a preponderance of the evidence. Matthews v. Dir. of Revenue, State, 938 S.W.2d 279, 282 (Mo.App.1997).
Section 302.535.1 provides that a suspended driver may seek a trial de novo wherein "the burden of proof shall be on the state to adduce the evidence." Under this burden, the Director must establish a prima facie case by a preponderance of the evidence, showing that there was probable cause to arrest the driver for driving while intoxicated and that the driver's blood alcohol content exceeded the legal limit. Reckner, 121 S.W.3d at 300. Although the burden of production shifts to the driver to rebut the Director's case once Director establishes a prima facie case, "the burden of persuasion always remains on the Director." Id. at 301.
We are unable to determine from the record the basis for the trial court's finding that Director "failed to meet the required burden of proof and [did not] adduce sufficient evidence to support the suspension[.]" Respondent's acquiescence to the admission of Director's business records, the police reports and the foundational requirements for admission of breathalyzer test results establish the validity of the blood alcohol test results in proving that Respondent's blood alcohol content exceeded the legal limit--the second prong essential in establishing the Director's prima facie case.
*3 Therefore, we presume that probable cause was the genuine issue of fact raised. The only objection raised by Respondent was to the arresting officer's testimony regarding the provision of information from the employee at Huck's gas station to the police dispatcher that was subsequently relayed by the dispatcher to Officer Mills, referencing two intoxicated females driving in a silver Honda. Respondent requested that the trial court strike such testimony, "based upon the fact that it was ... hearsay within hearsay based on the officer's testimony." The trial court took this objection with the case.
Counsel for Respondent also cross-examined Officer Mills regarding the fact that the report he received from dispatch did not identify which one of the two intoxicated women was driving the vehicle. Officer Mills responded that he was not provided that information and did not know who was driving when the pair left Huck's gas station.
Regarding the first element which Director must establish, whether there was probable cause to arrest Respondent, the record convinces us that Officer Mills had probable cause to believe Respondent had been driving while intoxicated, despite the fact
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