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Devereux v. Director of Revenue3/23/1999
Missouri Court of Appeals Eastern District
Appeal From: Circuit Court of St. Louis County, Hon. Robert S. Cohen
Opinion Vote: REVERSED AND REMANDED. Hoff, P.J., and Russell, J., concur.
Opinion:
Appellant, Director of Revenue ("Director"), appeals the judgment of the Circuit Court of St. Louis County reinstating the driving privilege of respondent, Eleanor M. Devereux ("driver"), after a trial de novo pursuant to RSMo section 302.535 (Cum.Supp. 1998). We reverse and remand.
On August 22, 1997, a Town and Country police officer stopped driver's vehicle for failing to stop at a stop sign. After approaching driver, the officer smelled an odor of an alcoholic nature on her breath and noticed her eyes were watery and bloodshot. Driver admitted she had been drinking. The officer then asked driver to perform several field sobriety tests, the results of which indicated driver was intoxicated.
The officer arrested driver for driving while intoxicated and took her to the police station where she consented to a breath test. The test result showed driver had a blood alcohol concentration of .112%. Subsequently, Director suspended driver's driving privilege pursuant to RSMo section 302.505 (Cum.Supp. 1998), for driving with a blood alcohol concentration of at least .10%.
Thereafter, driver filed a petition for a trial de novo in the St. Louis County Circuit Court. At trial, Director moved for the admission of Exhibit D, which contained a maintenance report dated August 8, 1997 and included printouts that accompanied the maintenance report, as well as a copy of a RepCo Marketing certificate of analysis on Lot No. 96004 with the language, "Corrected 01/20/97," at the top. Driver objected to the introduction of those documents and the trial court granted driver time in which to file a memorandum of law, including her objections to the introduction of those documents. The trial court also granted Director time to respond to driver's memorandum. Also at trial, driver introduced several other certificates of analysis on Lot No. 96004 from RepCo Marketing. Driver's objections in her memorandum were based on the following grounds: (1) an alleged lack of probable cause for driver's arrest, (2) the certificate of analysis allegedly contained hearsay, double hearsay, and triple hearsay, and (3) the multiple certificates of analysis introduced by driver.
After the trial de novo and reviewing the parties' post-trial memoranda and exhibits, the trial court found probable cause for driver's arrest, but sustained driver's objections to the certificate of analysis and set aside the suspension. 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 driver's driving privilege, Director had the burden of proving by a preponderance of the evidence that the arresting officer had probable cause for the arrest and further, that driver was driving when his blood alcohol concentration was .10% or more by weight. Rogers v. Director of Revenue, 947 S.W.2d 475, 476-77 (Mo.App.E.D. 1997). When Director makes a prima facie showing of its burden, then the burden shifts to driver to prove by a preponderance of the evidence that his blood alcohol concentration was not .10% or more at the time he was driving. Green v. Director of Revenue, 961 S.W.2d 936, 938 (Mo.App.E.D. 1998).
In her points relied on, Director argues the trial court erred in rejecting the certificate of analysis for the simulator solutio
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