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Childs v. Director of Revenue10/5/1999
This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.
Appeal From: Circuit Court of St. Charles County, Hon. Ellsworth Cundiff
Opinion Vote: REVERSED AND REMANDED. Simon and Dowd, JJ., concur.
Appellant, Director of Revenue, ("Director") appeals from the judgment reinstating the driving privileges of respondent, William Childs, Jr., ("driver"). We reverse and remand.
On August 17, 1996, Trooper Clinton Anderson of the Missouri Highway Patrol, was westbound on Interstate 70 at Highway K in St. Charles County, when he saw driver driving his automobile on the centerline between lanes one and two. He pulled driver over. While speaking with driver, he noticed that his eyes were bloodshot and his speech was slurred. Trooper Anderson could also smell a moderate odor of alcohol on driver's breath. Trooper Anderson asked driver how much he had to drink and driver responded, "I had too much, I am just going home."
Trooper Anderson performed four field sobriety tests on driver. Driver performed poorly on all the tests, except one. Based on these results, Trooper Anderson arrested driver for driving while intoxicated and transported him to the St. Charles County Sheriff's Department for a breathalyzer test. Driver waived his Miranda rights and consented to a breathalyzer test. The test showed driver had a blood alcohol content of .118 percent.
Following driver's arrest, Director suspended his driving privileges pursuant to section 302.505, RSMo 1998. The suspension was upheld after administrative hearing. On October 18, 1996, driver filed a petition for a trial de novo with the circuit court as allowed by section 302.535. The circuit court held the trial de novo on September 30, 1998. Director had filed with the court a certified copy of driver's records from the Department of Revenue, as well as a certified copy of records from the Missouri Highway Patrol. The records included copies of the tickets issued to driver, the Alcohol Influence Report dated August 17, 1996, driver's breathalyzer test results, the Datamaster Maintenance Report dated August 5, 1996, a certificate of analysis from RepCo Marketing and the Type II permit of the maintenance officer.
At the trial, the case was submitted on the records. On the same day, the court entered a judgment, reinstating driver's driving privileges. The court noted: "That the regulations set forth by the Dept. of Health were not adhered to & determination of Petitioner's BAC cannot be made." Director appeals.
On appeal, Director contends the trial court erred in setting aside driver's suspension because it misinterpreted and misapplied the law, and as a result, its decision is against the weight of the evidence. Driver does not file a brief responding to the Director's point and we are without the benefit of driver's arguments, if any.
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 the trial de novo, the Director had the burden of showing by a preponderance of the evidence that: (1) the arresting officer had probable cause to arrest driver for driving while intoxicated; and (2) that driver's BAC was at least .10 percent at the time of his arrest. Whitworth v. Director of Revenue, 953 S.W.2d 142, 143 (Mo.App.E.D. 1997). When the Director makes a prima facie case, the burden then shifts to the driver to present evidence to rebut the prima facie case by a preponderance of the evidence. Green v. Director of Revenue,
Page 1 2 Missouri DUI Attorneys
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