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Meurer v. Director of Revenue2/2/1999
The Director of Revenue (Director) appeals the circuit court's judgment setting aside the Director's suspension of Richard Meurer's (Meurer) driving privileges. We reverse and remand.
Meurer filed a petition for a trial de novo with the circuit court pursuant to Section 302.535 RSMo Cum. Supp. 1997, after Director suspended his driving privileges following his arrest for driving while intoxicated. The trial de novo was held by commissioner on April 6, 1997. At trial, the parties stipulated to the following: (1) the arresting officer, Officer Michael Defoe, had probable cause to arrest Meurer on October 1, 1997 for driving while intoxicated pursuant to a Town & Country city ordinance; (2) Defoe, who also tested Meurer's blood alcohol content (BAC) following his arrest, had a valid permit to administer and do breathalyzer maintenance tests on October 1, 1997; (3) Defoe informed Meurer of the Implied Consent provisions and completed all the steps on the Alcohol Influence Report checklist; and (4) Defoe used a .100 simulator solution.
Following the stipulation, Director chose to submit the rest of her case on the following records: Exhibit A, the ordinance; Exhibit B, the Alcohol Influence Report, the breath test checklist, Defoe's Type III permit and test results; and Exhibit C, the maintenance report with attachments and Defoe's Type II permit. Exhibit C was offered as a business record of the Town and Country Police Department, certified by the affidavit of Defoe, who also served as the custodian of records for Town and Country. Exhibit C included the Datamaster Maintenance Report for Datamaster #950076 with its attached printouts, the certificate of analysis for Lot #96004 simulator solution from RepCo Marketing Inc., and Defoe's Type II permit. Defoe not only arrested Meurer and gave him a breath test, but he also maintained the breathalyzer machines at his police department. Meurer offered no evidence.
Following Meurer's objection, the commissioner refused to admit Exhibit C, finding the certificate of analysis did not conform to the Department of Health regulation, 19 CSR 25-30.051(1). As a result, the commissioner also rejected the checklist, printout and breath test results contained in Exhibit B. The commissioner then issued her findings and recommendations, finding that Meurer did not have a BAC of .10 percent or more and reinstating Meurer's driving privileges. The trial court adopted the commissioner's findings as the court's judgment. Director appeals.
The court's judgment will be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). To uphold the suspension of Meurer's driving privileges, Director had the burden of proving by a preponderance of the evidence that the arresting officer had probable cause to arrest him for driving while intoxicated and further that his BAC was .10 percent or more by weight. Collins v. Director of Revenue, 691 S.W.2d 246, 252 (Mo. banc 1985). When the Director makes a prima facie showing of her case, then the burden shifts to the driver to rebut it by a preponderance of the evidence. Green v. Director of Revenue, 961 S.W.2d 936, 938 (Mo. App. E.D. 1998).
In her points on appeal, Director argues the certificate of analysis does conform with 19 CSR 25-30.051 and that she laid a proper foundation for the admission of the breath test results. Therefore, because the breath test results were admissible, Director contends the decision to reinstate Meurer's driving privileges is against the weight of the evidence.
To lay a proper foundation fo
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