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Mesler v. Director of Revenue1/5/1999
The Director of Revenue (Director) appeals from the circuit court's judgment reinstating the driver's license of Scott Mesler (Mesler) after the Director had suspended it pursuant to section 302.505, RSMo 1994. We reverse and remand.
On January 5, 1997, Officer Ronald Fiala of the City of St. Louis police department pulled over Mesler for speeding. While speaking to Mesler, Fiala smelled a strong odor of alcoholic beverage on his breath. He also noticed that Mesler's eyes were bloodshot and had a poor reaction to light. Mesler refused to perform several field sobriety tests. However, Fiala performed the gaze nystagmus test on Mesler, which he failed. Fiala then arrested Mesler for driving while intoxicated and transported him to the police station. Mesler consented to a breathalyzer test that displayed a blood alcohol content of .11 percent. Based on these test results, the Director suspended Mesler's driving privileges. Mesler filed a petition for trial de novo with the circuit court pursuant to section 302.535, RSMo 1994.
At trial, Officer Fiala testified regarding Mesler's arrest and Officer Ronald Gilmore testified about the breathalyzer test. When Gilmore testified about Mesler's test results, Mesler objected for lack of foundation because there was no evidence the breathalyzer had been properly inspected and was running properly and further, no probable cause to arrest Mesler. Officer George Jefferson testified regarding the maintaining of the breathalyzer used to test Mesler.
Following Jefferson's testimony, the Director offered into evidence the checklist (Exhibit B), the printout with Mesler's breathalyzer test results (Exhibit C), and the maintenance report with attachments (Exhibit D). Mesler objected to the test results on his "prior grounds." He objected to admission of the maintenance report because: (1) at the time it prepared the certificate of analysis, RepCo Marketing, Inc., was an administratively dissolved corporation in its state of incorporation, North Carolina; (2) the certificate of analysis contained hearsay; and (3) the certificate of analysis failed to indicate the manufacturer of the solution as required by the Department of Health regulations.
Mesler offered a certified copy from the State of North Carolina that showed RepCo Marketing, Inc. had been administratively dissolved on August 11, 1993. The court refused an uncertified copy of a certificate of reinstatement from Director, but allowed them until 5:00 p.m. that day to file a certified copy. The court indicated that if the certified copy of reinstatement was not filed, it would exclude exhibits B, C, and D. Director failed to file a certified copy of reinstatement. On December 3, 1997, the court found that Mesler did not have a BAC of .10 percent or more by weight and reinstated Mesler's driving privileges. Director appeals.
Our review is governed by Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Pursuant to that standard, the circuit 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. Id.
On appeal, Director asserts the circuit court erred in failing to admit evidence of Mesler's breathalyzer test results because Director laid a proper foundation for its admission.
To establish the foundation for admitting the breath test results, the Director had to demonstrate that 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
Page 1 2 3 Missouri DUI Attorneys
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