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Trumble v. Director of Revenue11/24/1998
Appeal From: Circuit Court of St. Louis County, Hon. Daniel J. O'Toole
Opinion Summary:
The Director of Revenue appeals the trial court's judgment reinstating Arvie Trumble's (Driver) driving privileges pursuant to Section 302.535, RSMo Cum. Supp. 1997.
REVERSED AND REMANDED.
Division Four holds: The trial court erred in excluding the certificate of analysis and breath test results. Director established its prima facie foundation for admission of the certificate of analysis and breath test results by attaching the certificate of analysis to an affidavit from the custodian of records at the police department and by complying with 19 CSR 25-30.051(4).
Opinion Vote: REVERSED AND REMANDED. Gaertner and Rhodes Russell, JJ., concur.
Opinion: The Director of Revenue (Director) appeals from a judgment reinstating the driving privileges of Arvie Gene Trumble (Driver) after a trial de novo pursuant to section 302.535, RSMo Cum. Supp. 1997. We reverse and remand.
On March 7, 1997, a police officer for the Brentwood police department in St. Louis County saw a vehicle driven by Driver weaving across double yellow lines. The officer stopped Driver who admitted that he had been drinking. The officer administered a field sobriety test and then arrested Driver for driving while intoxicated. At the police station, the officer performed a breath analysis test. The test showed Driver had a blood alcohol content of .20 percent. Director suspended Driver's driving privileges after an administrative hearing.
Driver filed a petition for trial de novo in St. Louis County pursuant to Section 302.535, RSMo Cum. Supp. 1997. At the trial on November 4, 1997, Director offered three exhibits: (1) Exhibit A, ordinance; (2) Exhibit B, a packet of records including the police and arrest report, Alcohol Influence Report, checklist for breath test, the officer's valid permit and breath test results; and (3) Exhibit C, maintenance report and certificate of analysis. Both Exhibit B and Exhibit C were accompanied by affidavits from the custodian of records of the Brentwood Police Department, certifying the records were business records in accordance with Section 490.680, RSMo 1994. After counsel's objection, the court refused to admit Exhibit C and the portion of Exhibit B that contained the breath test result. The trial court entered judgment reinstating Driver's driving privileges. The court noted that "The certificate of analysis provided by RepCo Marketing is not admitted for the reason it contains double hearsay." Director appeals.
Our review of the trial court's decision is controlled by Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Cain v. Director of Revenue, 896 S.W.2d 724, 726 (Mo. App. E.D. 1995). Therefore, the decision of the trial court will be affirmed unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy, 536 S.W.2d at 32.
In her two points on appeal, Director argues the trial court erred in refusing to admit the certificate of analysis and breath test results and the trial court's judgment was against the weight of the evidence.
To suspend a license under section 302.505, the Director must show by a preponderance of the evidence that the police had probable cause to arrest the driver for driving while intoxicated and the driver's blood alcohol content exceeded the legal limit at the time of his arrest. Peeler v. Director of Revenue, 934 S.W.2d 329, 331 (Mo. App. E.D. 1996). To establish a prima facie foundation for the admission of breath analysis test results, Director must show: (1) th
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