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Grace v. Director of Revenue5/28/2002
The Director of Revenue (Director) appeals from the circuit court judgment reinstating petitioner's driving privileges after a trial de novo. We reverse and remand.
On May 10, 2000 a dark colored van with front-end damage was seen leaving the scene of an accident. Officer Sidney McDonald, then of the St. Ann Police Department, responded to the scene of the accident. Officer Taylor, also of the St. Ann Police Department, radioed Officer McDonald and reported that a van matching that description was stopped and blocked by a civilian's car a few blocks from the scene of the accident. He observed two men standing near the van. He made contact with the driver of the van, who identified himself as petitioner. Petitioner told Officer Taylor he was the owner of the van, that he had consumed approximately eight beers, and that he had been in an accident. Officer Taylor smelled "an odor of alcohol around [petitioner]." Officer Taylor arrested petitioner for leaving the scene of an accident and transferred petitioner to the St. Ann Police Department.
Officer McDonald proceeded to the St. Ann Police Department where he met Officer Taylor and petitioner. His initial contact with petitioner was at 10:24 p.m. He noticed petitioner had a strong odor of alcohol, watery and bloodshot eyes, slurred speech, and was swaying back and forth. Officer McDonald then had petitioner perform three field sobriety tests, all of which petitioner failed.
Based on his own observations of petitioner's demeanor, appearance, and performance of field sobriety tests, and based on Officer Taylor's observations of petitioner's demeanor, Officer McDonald concluded that petitioner was intoxicated. Officer McDonald placed petitioner under arrest for driving while intoxicated. He gave the implied consent warning to petitioner at 11:26 p.m. and administered a breath alcohol test to petitioner using an Intoxilyzer 5000, which was working properly. Petitioner had been in his line of sight for the fifteen minute period before the breath analyzer test was administered and that during that time he did not see petitioner consume anything, smoke, vomit, or put anything into or take anything out of his mouth. Officer McDonald followed the techniques and methods approved by the Department of Health for administering the test. He carried a valid permit to administer the test and used equipment approved by the Department of Health. He obtained the result of the breath test from a printout produced by the Intoxilyzer 5000 and recorded that result on page three, the Implied Consent Form, of Form 2389, The Missouri Department of Revenue Alcohol Influence Report, in the section headed "Certification of Examination by Operator." Officer McDonald sent the printout with his report to his supervisor.
Even though the offense occurred in 2000, the record reflects that Director suspended petitioner's license pursuant to section 302.505 RSMo (1994). Petitioner requested an administrative hearing, and the hearing officer sustained the suspension of his driver's license. Petitioner then filed a petition for trial de novo with the circuit court, and the case was assigned to a commissioner for hearing and determination.
At the trial de novo, Director called one witness, Officer McDonald. Officer McDonald identified Exhibit B, the Implied Consent Form, on page three of the Missouri Department of Revenue Alcohol Influence Report (AIR), which contained the results of petitioner's blood alcohol test. Petitioner announced that he objected to Officer McDonald testifying about the result of the breath test, citing the best evidence rule. The commissioner sustained petitioner's objection at that point, and again when Direct
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