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Fainer v. Director of Revenue12/23/2003
Opinion Vote: REVERSED AND REMANDED.
Dowd, Jr., and Russell, J.J., concur.
Opinion:
The Director of Revenue ("Director") appeals from a judgment of the Circuit Court of St. Louis County reinstating the driving privileges of Lisa M. Fainer ("Driver"). We reverse and remand.
On February 12, 2002, Driver was driving in Berkeley, Missouri when she collided with a guardrail. Captain Daniel Paulino ("Paulino") of the Berkeley police department responded to the scene. When Paulino came into contact with Driver, Driver stated "I was driving too fast and I lost control of my friend's car. I'm so sorry." After speaking with Driver for a few minutes, Paulino detected a strong odor of alcohol on her breath. Paulino then asked her if she had been drinking to which she replied "yes, I had 2 large glasses of Southern Comfort." Paulino then obtained her consent to perform a few field sobriety tests.
Paulino noted on the Alcohol Influence Report ("AIR") that Driver swayed while balancing, used her arms to balance, and put her foot down more than three times during the one leg stand test.
As a result, Driver was transported to the Berkeley police department. At the station, Paulino read Driver her Miranda rights. Driver then consented to a chemical test of her breath using the department's Blood Alcohol Content Verifier ("BACV"). The result of this test, as noted on the AIR, was .243% blood alcohol content by weight. Paulino signed the Certification of Examination by Operator section of the AIR.
The Department of Revenue suspended Driver's driving privileges. Driver then filed for trial de novo to determine whether the suspension was proper.
At trial, the Director submitted two exhibits. The first exhibit consisted of an affidavit of Chris Silva, the custodian of records for the Breath Alcohol Program, a maintenance report for BACV, a copy of the Certificate of Analysis for the simulator solution used in the instrument, backup data for the test performed on the breath test instrument, and proof of Paulino's authorization to use the BACV. The second exhibit consisted of, in pertinent part, the AIR and Paulino's report, both of which were certified by an affidavit of Pamela Ann Douglas ("Douglas"), the custodian of records for the Department of Revenue.
The trial court excluded the results of the breath test from the AIR after an objection was made on the ground that there was no printout from the machine and Paulino had not testified. The trial court also sustained Driver's objection that the interview information was not relevant to the issue of probable cause because it included statements relating to the period after her arrest.
The trial court determined that Paulino did not have probable cause to arrest Driver and the Director did not present sufficient credible evidence to show Driver's blood alcohol concentration was .08% or more by weight. As a result, the trial court reinstated Driver's driving privileges.
We affirm the judgment of the trial court "unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law." Rain v. Director of Revenue, 46 S.W.3d 584, 587 (Mo.App.E.D. 2001). In reviewing, we must accept as true the evidence and inferences favorable to the judgment and disregard all contrary evidence and inferences. Reece v. Director of Revenue, 61 S.W.3d 288, 291 (Mo.App.E.D. 2001). However, when the evidence is uncontroverted and the case is virtually one of admitting the facts or when the evidence is not in conflict, we are not obligated to defer to the trial court's findings. Rain, 46 S.W.
Page 1 2 3 Missouri DUI Attorneys
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