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Neeley v. Director of Revenue5/20/2003
On December 13, 2001, the Director of Revenue (the "Director") notified Leister Neeley ("Neeley") of the suspension of her driver's license pursuant to section 302.505 because she had been driving with a blood-alcohol content of .260. On December 18, 2001, Neeley filed a petition for review in the Circuit Court of Benton County. The circuit court heard the parties on the petition on March 4, 2002. The Honorable Larry M. Burditt entered judgment in favor of Neeley on March 19, 2002. He held that the Director failed to meet her burden of proof in showing the blood draw from Neeley met all the requirements of section 577.029 and the applicable Missouri Department of Health regulations, and ordered reinstatement of Neeley's driving privileges. On appeal, the Director argues the trial court erred in setting aside the suspension of Neeley's driving privileges because the stipulation entered into by Neeley and the Director proving a blood-alcohol content result of .260 relieved the Director from the burden of proving she fulfilled all the foundational prerequisites for the entry of the test results into evidence. Nevertheless, the Director asserts she carried her burden of proof and introduced evidence that Neeley's blood test was performed in accordance with all statutory and regulatory requirements.
We reverse and remand to the trial court to enter a judgment reinstating the suspension of Neeley's driving privileges.Facts On July 2, 2001, around 1:30 p.m., Missouri State Highway Patrol Trooper Neil Atkinson ("Trooper") received report of an accident. While he was looking for the accident, a bystander flagged down the Trooper and reported an overturned vehicle with a woman inside. The Trooper saw the vehicle approximately eighty yards off the road in some trees. The only occupant of the car, Neeley, was lying across the front seat with her head in the passenger seat. The Trooper asked Neeley for her driver's license, and she told him it was in her purse on the floorboard. While speaking with Neeley, the Trooper noticed a strong odor of intoxicants. Neeley slurred her speech and appeared very confused. Neeley told the Trooper she had lost control of the vehicle and run off the road. The Trooper contacted an ambulance.
When he asked her if she had been drinking, Neeley told the Trooper, "No." Later, however, the Trooper overheard Neeley telling the emergency medicine technicians that she had been drinking vodka and water. The Trooper administered the horizontal gaze nystagmus test on Neeley, which she failed, but Neeley was unable to perform any other field sobriety tests. The Trooper then placed Neeley under arrest, and she was transported to Bothwell Memorial Hospital for treatment.
At the hospital, Corporal Michael McClain of the Missouri State Highway Patrol ("McClain") met Neeley and advised her of her rights under Missouri's implied consent law, and Neeley consented to her blood being drawn. Nurse Ross ("Ross"), the registered nurse who drew the blood from Neeley, testified it was medically safe to do so. Ross used a nonalcoholic solution, Betadine, to prepare the withdrawal site and an unused needle for the draw. He testified the sample tube for collecting the blood had a rubber stopper on one end; however, both Ross and McClain testified on cross-examination that there was something inside the collection tube that neither of them placed there nor could identify.
On December 13, 2001, the Director sent Neeley notice of the suspension of her driver's license pursuant to section 302.505 because she had been driving with a blood-alcohol content ("BAC") of .260. On December 18, 2001, Neeley filed a petition for review of her suspension in the Circuit Court of Bent
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