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McDaniel v. Lohman5/5/1999
The Director of Revenue ("Director") appeals the circuit court's judgment of June 10, 1998, restoring the driving privileges of Mitchell Lynn McDaniel ("Driver") after they had previously been suspended under the provisions of section 302.505.1. In its judgment, the trial court ordered the Director to reinstate Driver's driving privileges on the basis that the "Director ha failed to adduce substantial evidence that [Driver] operated a motor vehicle with an unlawful blood alcohol concentration where [Driver] contested those facts, the arresting officer failed to appear under subpoena, and no witness observed [Driver] in the act of operating a motor vehicle." In her sole point of error, Director maintains that despite the lack of in-court testimony of the arresting officer at trial, she made a prima facie case that Driver was arrested upon probable cause for violating an alcohol-related offense and that he had been driving a motor vehicle with a blood alcohol content in excess of .10% by weight. We reverse and remand with directions to enter a judgment reinstating the suspension of Driver's driving privileges.
The judgment of the trial court will be affirmed unless there is no substantial evidence to support it, unless it is against the weight of the evidence, or unless the trial court erroneously declares or applies the law. Kienzle v. Director of Revenue, 944 S.W.2d 326, 327 (Mo.App. 1997). In reviewing a revocation or suspension under section 302.505, the trial court must determine the following: (1) whether the driver was arrested upon probable cause for violating an alcohol-related offense; and (2) whether the driver had been driving with a blood alcohol content of at least .10% by weight. Id. Both of these elements must be proved by a preponderance of the evidence. Tebow v. Director of Revenue, 921 S.W.2d 110, 113 (Mo.App. 1996).
The record before us primarily embodies certified copies of records of the Department of Revenue, received into evidence as business records, consisting of Driver's "traffic tickets, the alcohol influence report [containing an attached printout of a breath analysis indicating that at 5:38 p.m. on June 7, 1997 that driver's blood alcohol content was .189%], the maintenance report on the BAC Verifier, with attached printouts, a certificate of analysis and notice of suspension . . . ." The trial court also received a uniform accident report into evidence. The parties stipulated that the breath analysis machine had been maintained properly. It was further stipulated that if Driver were called to testify as to "whether he was driving the vehicle, whether he had anything to drink" he would refuse to answer on the grounds of his "privilege under the Fifth Amendment." Although subpoenaed by the Director as a witness, the arresting officer failed to appear. Driver presented no evidence.
In the alcohol influence report, the arresting officer described the incident that is the impetus for this case as follows:
"On 6-7-97 I was patroling (sic) when I was dispatched to an accident . . . and the driver was possibly intoxicated. When I arrived I spoke to the owner of the parked car and then Mitchell L. McDaniel the driver of the pick-up that struck the parked car. I got McDaniel's information and noticed the smell of intoxicants. I asked if he had been drinking and he stated yes, 1 or 2 earlier. I then had McDaniel perform field sobriety tests and he did poorly on tests given. I then placed him under arrest for driving while intoxicated. I then transported him to the Police Dept. where I read him implied consent. McDaniel agreed to take the Breathalyzer test. McDaniel checked a .189% BAC so he was then charged with DWI . . . ."
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