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Wisdom v. Director of Revenue3/25/1999
nce with the maintenance check aspect of the regulation since evidence has been produced that the test was performed according to approved techniques and methods on a reliable machine." Id. Director's Points One and Two are meritorious and are sustained.
In Point Three, Director argues the trial court erred in sustaining Petitioner's motion to dismiss and setting aside the suspension of Petitioner's driving privileges. Director asserts the trial court's judgment was against the weight of the evidence because Director had proved (1) that the arresting officer had probable cause to arrest Petitioner for driving while intoxicated, and (2) that Petitioner's blood alcohol content was at least .10 percent by weight. We agree.
The trial court observed that the primary reason Petitioner's motion to dismiss was sustained was because Director had not proven Trooper McNair had probable cause for Petitioner's arrest. It has been held that " robable cause may exist where a police officer observes a traffic violation or unusual operation of a vehicle and, upon stopping a motorist, notes indications of alcohol consumption." Sullivan v. Director of Revenue, 936 S.W.2d 580, 581 (Mo.App. 1996). " robable cause to arrest for an alcohol-related traffic violation which supports an administrative license suspension may be developed after a motorist has stopped." Fischer v. Director of Revenue, 928 S.W.2d 424, 425 (Mo.App. 1996); see also Riche v. Director of Revenue, No. 80861, slip op. at 4 (S.Ct., Feb. 23, 1999)("neither section 302.505.1 nor the constitutional provisions upon which Riche relies require that the arresting officer's initial stop be based upon probable cause.") It is clear Director "does not have a burden of showing the lawfulness of or probable cause for a stop in order to revoke or suspend operating privileges for driving while intoxicated." Kienzle, 944 S.W.2d at 328. Indeed, "when judicially reviewing the administrative revocation of a driver's license, it is irrelevant whether the arrest was valid." Id.
Here, "the testimony of the arresting officer was unequivocal, and there was no contradictory evidence." Fischer, 928 S.W.2d at 425. Trooper McNair stopped Petitioner after she had observed him driving his vehicle across the double-yellow center line of the highway. He smelled of intoxicants and admitted he had ingested beers. Petitioner's eyes were blood shot and glassy and he failed two field sobriety tests. As to the required showing that Petitioner had been driving at a time when his blood alcohol concentration was above .10 percent by weight, we initially note that Trooper McNair was a Type III permittee, licensed to operate a DataMaster breath analyzer machine. Further, the record shows she went by the prescribed checklist in operating the machine and observed Petitioner 15 minutes prior to taking his breath analysis. The breath analyzer machine, which had been appropriately maintained and, indeed checked within five days of the administering of Petitioner's test, registered a blood alcohol concentration of .174 percent. Point Three is sustained.
In Reinert v. Director of Revenue, 894 S.W.2d 162, 164 (Mo. banc 1995), as here, the testimony of the arresting officer was unequivocal, and there was no contradictory evidence. In that case, the Missouri Supreme Court rejected a contention that the trial Judge might not have found the officer's testimony to be credible. Id.; see also Fischer, 928 S.W.2d at 425. "Deference to the trial court's findings is not required when the evidence is uncontroverted and the case is virtually one of admitting the facts or when the evidence is not in conflict." Fischer, 928 S.W.2d at 425-26; see also Kienzle, 944 S.W.2d at 328. "Our stand
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