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Wisdom v. Director of Revenue3/25/1999
Brandom v. Director of Revenue, 931 S.W.2d 510, 511 (Mo.App. 1996).
In Point One, Director asserts that the trial court erred in refusing to admit evidence of Petitioner's breath test result. Director argues that the breath analyzer, a Data Master, was properly maintained within 35 days of Petitioner's test and that the trooper had a valid Type III permit, had observed Petitioner for 15 minutes before the test, and had followed the required checklist while giving the test. In Point Two, Director maintains the trial court erred in refusing to admit evidence of Director's Exhibit A because these records were admissible under sections 490.680 and 490.692, RSMo 1994, as business records. Both points will be considered together.
To lay a proper foundation for the admission of the breath analyzer test results, Director must demonstrate the test was performed: (1) by following the approved methods and techniques of the Department of Health; (2) by a person holding a valid permit; and (3) on equipment and devices approved by the Department of Health. Rogers v. Director of Revenue, 947 S.W.2d 475, 477 (Mo.App. 1997); see also section 577.020.
We first determine that the trial court erred in not receiving into evidence Director's Exhibit A. A proper foundation had been laid for the admission of the exhibit's records as business records. Section 490.680, RSMo 1994, provides a statutory exception to the hearsay rule, allowing for the admission of business records for the truth of the matter asserted if the custodian or other qualified witness testifies to the records' identity and mode of preparation. Thebeau v. Director of Revenue, 945 S.W.2d 674, 675 (Mo.App. 1997); Smith v. Director of Revenue, 948 S.W.2d 219, 221 (Mo.App. 1997). "[Section] 490.692.1 [RSMo 1994] permits the requisite foundation for the admission of business records to be laid by affidavit rather than by direct testimony. The affidavit must be substantially in the form and content of the affidavit set forth in the statute, and the affidavit and records must have been served on the opposing party at least seven days prior to the commencement of trial." Thebeau, 945 S.W.2d at 675; see also section 490.692.2-3, RSMo 1994.
Here the affidavit accompanying Director's Exhibit A mirrored the affidavit set forth in section 490.692.3, RSMo 1994. The record reflects that these records were timely served before the trial de novo. The trooper also identified and authenticated documents within the exhibit that she prepared. She further acknowledged that she was a "qualified Type 3 Breath Analysis operator" on January 18, 1997. See Miller v. Director of Revenue, 719 S.W.2d 787, 790 (Mo. banc 1986). In either event, Petitioner did not object to the form of the affidavit nor that the records had not been timely served on him.
Additionally, as heretofore set out, Director's Exhibit B was received into evidence without objection. It consisted of a "DataMaster Maintenance Report" showing that certain maintenance checks had been performed by a qualified maintenance Type II permittee on January 13, 1997, five days before Petitioner was tested on the same machine. See 19 CSR 25-30.031(3)( Type II permittee shall perform maintenance checks on breath analyzers under his/her supervision at intervals not to exceed thirty-five (35) days). " n approved machine that has had a maintenance check within 35 days is capable of giving accurate readings." Sellenriek v. Director of Revenue, 826 S.W.2d 338, 340 (Mo. banc 1992). Therefore, in the instant matter, since Director offered "proof that a maintenance check been performed on the machine within 35 days prior to the test in question, then the [Director] has demonstrated complia
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