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Smith v. Director of Revenue12/7/1999
This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.
Appeal From: Circuit Court of Monroe County, Hon. Robert M. Clayton, II
Opinion Vote: REVERSED AND REMANDED. Knaup Crane and Teitelman, JJ., concur.
Opinion:
The Director of Revenue ("DOR") appeals a judgment by the Monroe County Circuit Court reinstating the driving privileges of Jay Dee Smith ("driver"). The DOR claims it proved a license revocation prima facie case by showing driver was arrested upon probable cause that he was driving while intoxicated and driver's blood alcohol content ("BAC") was .189 percent at the time of arrest. The DOR maintains driver failed to rebut this prima facie case. We reverse and remand for a new trial.
On August 22, 1997, following a morning shift, driver and several co-workers met at a local tavern, arriving at 7:20 a.m. Driver testified he consumed three and one-half beers at the tavern. At around 10:30 a.m., driver left the tavern and attempted to drive home. On the drive home, however, at approximately 10:35 a.m., driver ran his car into a ditch. Driver was unable to extricate his car from the ditch, and a friend who had been following driver gave him a ride home.
Driver testified that immediately after arriving home, he drank approximately two to three more beers. At 11:06 a.m., a police officer arrived to inquire about driver's wrecked automobile. Driver admitted to driving the car, and the police officer noted his eyes were bloodshot, his speech was slurred, and he smelled of intoxicants. The police officer administered a battery of field sobriety tests which driver failed.
Driver was arrested and taken to the police station. He agreed to submit to a breath test. At 11:58 a.m., a breath test was administered, and driver's BAC was measured at .189 percent.
Pursuant to section 302.505.1 RSMo (Supp. 1998), the DOR revoked driver's driving privileges. Driver filed a petition for a trial de novo. At trial, the only issue driver contested was whether his BAC was at least .10 percent at the time he was driving. Following a bench trial, the court reinstated his driving privileges, explaining no evidence was presented that driver was intoxicated at the time he drove his car into the ditch. This appeal follows.
We will affirm the trial court's judgment unless there is no substantial evidence to support it, unless it is against the weight of the evidence, or unless the trial court erroneously declared or applied the law. Walker v. Director of Revenue, State of Mo., 922 S.W.2d 57 (Mo. App. 1996).
In its sole point on appeal, the DOR argues it was not required to prove driver's blood alcohol content at the actual moment he was driving. Rather, it was required only to prove a prima facie case by showing driver's blood alcohol content was .189 percent. Moreover, the DOR contends driver's evidence that he drank only two or three beers following the accident was insufficient to show that his blood alcohol content was below .10 percent at the time he was driving.
At trial, the DOR has the burden of proving a prima facie case for suspension of a driver's license by presenting evidence that (1) the driver was arrested upon probable cause that he or she was driving in violation of an alcohol-related offense and (2) at the time of the arrest, the BAC of driver was .10 percent or greater. Green v. Director of Revenue State of Mo., 961 S.W.2d 936, 938 (Mo. App. 1998). The DOR is not required to show by scientific evidence that driver had a BAC of .10 percent or more at the actual moment of driving when it can be reasonably assumed from other evide
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