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Endsley v. Director of Revenue9/21/1999
This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.
Missouri Court of Appeals Western District
Appeal From: Circuit Court of Ray County, Hon. David L. Busch
Citation:
Opinion Vote: AFFIRMED. Spinden, J., concurs. Hanna, J., Dissents in separate opinion.
Opinion:
The Director of Revenue (the Director) appeals from the judgment of the circuit court reinstating the driver's license of the respondent, Brian E. Endsley, after it had been administratively suspended for driving while intoxicated (DWI) pursuant to section 302.505.
In his sole point on appeal, the Director claims that the trial court erred in reinstating the respondent's driver's license because he carried his burden of proof to support the administrative suspension of his license under section 302.505 in that there was sufficient evidence to establish that there was probable cause to arrest the respondent for DWI and that, at the time, his blood alcohol concentration (BAC) was ten-hundredths of one percent or more by weight of alcohol in his blood.
We affirm.
Facts
On February 13, 1998, Officer Michael Bridgeforth, a police officer for the City of Richmond, Missouri, observed the respondent driving fifty miles per hour in a thirty-five mile per hour zone. He pursued the respondent's vehicle, following it into a parking lot where it stopped, at which time he exited his patrol car and approached the vehicle to issue a speeding citation.
While issuing the citation, the officer smelled alcohol on the respondent's breath. The respondent admitted that he had drunk two beers. As a result, Officer Bridgeforth administered three field sobriety tests which, in his opinion, the respondent failed. He also administered a portable breath test, which showed that the respondent had a BAC which was consistent with a charge of DWI. Based on the various test results, the officer arrested the respondent for DWI and transported him to the Richmond police station. At the station, he was given a breath test which indicated that he had a BAC of .108 of one percent.
Following his arrest, the respondent was notified by the Director that his driver's license was suspended pursuant to section 302.505. The respondent filed a petition for administrative review of the suspension, on which a hearing was held on July 16, 1998. After hearing evidence, the hearing officer determined that there was sufficient evidence to establish that the respondent had been arrested upon probable cause to believe he was driving a motor vehicle while intoxicated and that his BAC was in excess of ten-hundredths of one percent. As such, the suspension of the respondent's driver's license was sustained.
On August 10, 1998, the respondent filed, pursuant to section 302.535.1, his petition for a trial de novo in the Circuit Court of Ray County. The petition was heard on September 21, 1998, by the Honorable David L. Busch. At the hearing, Officer Bridgeforth was asked about the circumstances of the respondent's arrest. The officer testified that he stopped the respondent for speeding; that he smelled alcohol on his breath; that he admitted to drinking two beers, and that he failed the three field sobriety tests given. He also testified that he administered two breath tests, a portable one at the scene and one at the station. As to the result of the portable breath test, the officer testified that it was "consistent with that of a DWI charge," establishing probable cause to arrest.
When the Director initially offered at trial the result of the breathalyzer test given at
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