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Wisdom v. Director of Revenue3/25/1999
The Director of Revenue (Director) appeals the circuit court's order restoring the driving privileges of Erbie J. Wisdom (Petitioner) after they had been revoked under the administrative revocation provisions of sections 302.500-.541. Petitioner's revocation was sustained after an administrative hearing and Petitioner filed a petition for trial de novo in circuit court pursuant to section 302.535. After a hearing, the circuit court restored Petitioner's driving privileges. Director raises three points of trial court error, discussed below. We reverse and remand with directions.
State Highway Patrol Trooper, Karen McNair, testified that on January 18, 1997, she observed Petitioner's vehicle crossing a double yellow centerline. After stopping the vehicle, Trooper McNair testified that she smelled an odor of intoxicants about Petitioner and noticed his eyes were bloodshot and glassy. Petitioner admitted he had been drinking beer. Trooper McNair asked Petitioner to perform several field sobriety tests. Petitioner failed the horizontal gaze nystagmus test and was unable to successfully complete the finger-dexterity test. Petitioner was not required to perform the walk-and-turn or the one-leg stand tests because of his purported back problems. Trooper McNair placed Petitioner under arrest for driving while intoxicated and transported him to the Sheriff's Department where Petitioner consented to a breath test. Trooper McNair observed Petitioner for 15 minutes before the test and thereafter, following the required checklist per 19 CSR 25-30.060, gave Petitioner a breathalyzer test on a Data Master breath analyzer machine. The test result showed Petitioner's blood alcohol content by weight to be .174 percent.
At the trial de novo, Petitioner stipulated to the proper maintenance of the Data Master breath analyzer machine. The trial court also took judicial notice of the applicable regulations of the Department of Health, governing "the determination blood alcohol content by breath analysis." See generally, 19 CSR 25-30.011-.080. Petitioner did not take the stand and the only testimonial evidence elicited was that of Trooper McNair by Director. The trial court refused to admit evidence of Petitioner's breath test result, sustaining Petitioner's objection to the receipt of the result of the breath test into evidence on the basis that no foundation was laid that the machine was operating properly at the precise moment of Petitioner's testing. Additionally, the trial court sustained an objection to the receipt into evidence of Director's Exhibit A, consisting of Department of Revenue records offered under a business records affidavit. See sections 490.680 and 490.692.
At the close of Director's case, the trial court sustained Petitioner's oral motion to dismiss by finding Director had failed to prove a prima facie case that Trooper McNair had probable cause to arrest Petitioner. Additionally, the trial court determined Director had failed to prove Petitioner was operating a vehicle with a blood alcohol concentration by weight of at least .10 percent.
The judgment of the trial court will be affirmed unless there is no substantial evidence to support it, unless it is against the weight of the evidence, or unless the trial court erroneously declares or applies the law. Kienzle v. Director of Revenue, 944 S.W.2d 326, 327 (Mo.App. 1997). "A suspension of driving privileges pursuant to section 302.505 requires a two-part showing: (1) that the driver was arrested upon probable cause that he or she was driving in violation of an alcohol related offense; and (2) that the driver had been driving at a time when his or her blood alcohol concentration was at least .10% by weight." Id.;
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