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Blechle v. Director of Revenue11/23/1999
This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.
Appeal From: Circuit Court of Perry County, Hon. William L. Syler
Opinion Vote: REVERSED AND REMANDED WITH INSTRUCTIONS. Dowd, Jr., P.J., and Teitelman, J., concur.
Opinion:
The Director of Revenue (Director) appeals from the trial court's judgment reinstating the driving privileges of Susan K. Blechle (Driver) which Director had suspended following Driver's arrest for driving while intoxicated. We reverse and remand.
On January 24, 1998, a police officer stopped Driver's vehicle for erratic driving. After poor performance on field sobriety tests, Driver was arrested and consented to a breath test. The result showed Driver had a blood alcohol concentration of .247%. Director suspended Driver's driving privileges, pursuant to Section 302.505 RSMo Cum. Supp. 1997, for driving with a blood alcohol concentration of at least .10%.
Driver requested a trial de novo. At that trial on October 13, 1998, Driver objected to the admission of the breath test result because the certificate of analysis did not comply with the version of 19 CSR 25-30.051 in effect at the time of Driver's arrest and the emergency version of 19 CSR 25-30.051 in effect on the date of trial (emergency version) was not applicable. The trial court held the emergency version did not retroactively apply to this situation because it was not purely procedural and the Department of Health did not have authority to promulgate emergency rules. The trial court applied the version of 19 CSR 25-30.051 that was in effect at the time of Driver's arrest, found the certificate of analysis did not comply with that regulation, concluded Director had not satisfied his burden of proof, and entered judgment in favor of Driver. This appeal followed.
On appeal, Director argues the trial court erred because it misinterpreted and misapplied the law in that the arresting officer had probable cause to arrest Driver for driving while intoxicated and Driver's blood alcohol exceeded .10%. Specifically, Director argues the trial court erred in finding Driver did not have a blood alcohol content of at least .10% because Director laid a proper foundation for the admission of the breath test result. Director claims the emergency version determines the validity of the breath analyzer's maintenance report, and contends the trial court erred in comparing the content of the certificate of analysis to an earlier version of 19 CSR 25-30.051 that was no longer in effect at the time of trial. Director argues the emergency version should be applied retroactively because this Court has held it is purely procedural. Finally, Director contends the Department of Health had statutory authority to promulgate the emergency version.
The court's judgment will be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).
At trial, Director had the burden of proving by a preponderance of the evidence that the arresting officer had probable cause to arrest Driver for driving while intoxicated and further, that Driver's blood alcohol content was .10% or more. Adkins v. Department of Revenue, 985 S.W.2d 407, 409 (Mo. App. E.D. 1999). To establish a foundation for admission of a breathalyzer test result, Director must show the test was performed (1) by following the approved methods and techniques of the Department of Health, (2) by an operator holding a valid permit, and (3) on equipment and devices approved by the Department of Health. Id. T
Page 1 2 Missouri DUI Attorneys
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