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Sheridan v. Director of Revenue4/15/2003
Opinion Vote: REVERSED AND REMANDED WITH DIRECTIONS.
Crandall, P.J. and Sullivan, J. concur.
Opinion:
The Director of Revenue appeals the judgment reinstating John Sheridan's driving privileges. We reverse.I. BACKGROUNDSheridan was arrested for driving while intoxicated and taken to the police station where he was given a breath test. His license was suspended, and he sought a trial de novo in circuit court. The court found that the arresting officer had probable cause to arrest Sheridan, and that finding is not challenged on appeal.
At trial, the arresting officer testified that she observed Sheridan for at least fifteen minutes before he was given the breath test, during which time Sheridan did not vomit, smoke, or put anything into or take anything out of his mouth. Another officer at the police station administered the test. He testified that he was authorized to operate the BAC Verifier and that he followed a checklist of steps when he administered the test. When asked the results of the breath test, Sheridan's objection for lack of foundation was sustained.
The Director of Revenue then offered Exhibit B, which contained, among other documents, a maintenance report from the BAC Verifier and the results of the test, showing Sheridan's blood alcohol content at 0.365%. Attached to the exhibit was a notarized business records affidavit. On the maintenance report itself, checkmarks indicated that various diagnostic checks and a radio frequency interference ("RFI") test had been performed. Although the report indicated that printouts of the diagnostic checks and RFI test were attached to the report, the attachments were not included in Exhibit B. The report also indicated that the machine's solution came from "Repco Marketing Inc." Again, although the report stated "certificate enclosed," no certificate of analysis from the solution supplier was included in Exhibit B. The inspecting officer signed the report and noted his permit number and its expiration date.
Sheridan objected to the admission of Exhibit B on the grounds that the inspecting officer did not testify and that the printouts and certificate of analysis were not attached to the maintenance report. The objection was sustained, and the Director made an offer of proof as to the contents of the exhibit. The Director offered no other evidence, and Sheridan put on no evidence. The court concluded that the Director failed to prove that Sheridan's blood alcohol content was over the legal limit and reinstated his driver's license.II. DISCUSSIONThis Court will affirm the trial court's judgment unless there is no substantial evidence to support it, it is contrary to the weight of the evidence, or the court erroneously declared or applied the law. Hinnah v. Director Of Revenue , 77 S.W.3d 616, 620 (Mo. banc 2002). In its point on appeal, the Director argues that the trial court erred as a matter of law by refusing to admit Exhibit B containing the results of Sheridan's breath test. We agree.
To meet the burden of proof for suspension of driving privileges, the Director must show by a preponderance of the evidence that at the time of arrest the driver's blood alcohol content was at or above the legal limit. Guccione v. Director of Revenue , 988 S.W.2d 649, 652 (Mo. App. E.D. 1999). "When the Director makes a prima facie case, the burden then shifts to the driver to rebut the prima facie case by a preponderance of the evidence." Id. To admit the results of a breath test as proof of blood alcohol content, certain foundational prerequisites must be met. Phelps v. Director of Revenue , 47 S.W.3d 395, 401 (Mo. App. E.D. 2001). At issue here is whether the Director demonstrated th
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