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McDaniel v. Lohman5/5/1999
avit complied with the form and content of the form set out in section 490.692." Id. When Department of Revenue records are admitted as business records in a section 302.535 de novo hearing, such records may create a prima facie case, even when the officer who made the arrest and conducted the breath test was not present at trial. See Helton, 944 S.W.2d at 310. Further, "it is a well- established rule that when evidence is admissible under any recognized exception to the hearsay rule, an objection based on the lack of an opportunity to confront or cross-examine is not valid." Cannon, 895 S.W.2d at 305; see Hensley v. Director of Revenue, 884 S.W.2d 419, 420 (Mo.App. 1994); Thebeau, 945 S.W.2d at 675-76.
In the case before us, Driver presented no evidence and refused to testify, leaving the Director's evidence uncontradicted. Also, Driver had equal opportunity to subpoena the arresting officer and compel his testimony or present evidence of his own to contradict the information contained within the records. Cannon, 895 S.W.2d at 305-06. However, he did not do so. Additionally, it was undisputed that Driver's breath analysis test indicated his blood alcohol content was .189%. Furthermore, the evidence shows that the officer had probable cause to believe that Driver was intoxicated at the time he was operating a motor vehicle. It is not "necessary for an officer to actually observe a person driving in order to have probable cause to arrest for driving while intoxicated." Rogers v. Director of Revenue, 947 S.W.2d 475, 477 (Mo.App. 1997). As previously set out, the arresting officer noted that Driver failed three sobriety tests at the scene of the accident he was investigating. Additionally, Driver's eyes were watery and bloodshot, his pupils were dilated, and his speech was slurred. Furthermore, the arresting officer's report presented facts showing that Driver was driving the vehicle in question. The arresting officer wrote in the uniform accident report that "Driver of V1 [Driver's vehicle] stated he was turning . . . and was getting himself a piece of pizza at the same time and then [struck] V2 [parked car]." This statement was not contradicted by Driver and clearly is an admission that he was driving. See Pappin v. Director of Revenue, 958 S.W.2d 591, 592 (Mo.App. 1998).
"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 v. Director of Revenue, 928 S.W.2d 424, 425-26 (Mo.App. 1996). The evidence established that Driver was arrested upon probable cause that he was driving in violation of an alcohol related offense and that he had been driving at a time when his blood concentration was at least .10 percent by weight. See Thebeau, 945 S.W.2d at 676; Kienzle, 944 S.W.2d at 328; Helton, 944 S.W.2d at 310. Under the facts of this case, the trial court erred as a matter of law in determining that the Director failed to prove her case in the absence of the testimony of the arresting officer. Its judgment is not supported by the evidence and is against the weight of the evidence.
The judgment of the trial court is reversed. The case is remanded to the trial court with directions to enter a judgment reinstating the suspension of Driver's driving privileges.
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