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Duing v. Director of Revenue10/30/2001
Appeal From: Circuit Court of Jefferson County, Hon. Gary P. Kramer
Opinion Vote: REMANDED.
Hoff, C.J., dissenting in part and White, Sp .J., concurs.
Opinion:
The Director of Revenue (hereinafter, "Director") appeals from the trial court's judgment setting aside the suspension of Stanley H. Duing's driving privileges (hereinafter, "Driver") for driving while intoxicated. Director's sole point on appeal claims the trial court erred in reinstating Driver's license because Director established a prima facie case for suspension, and Driver failed to rebut the prima facie case. We remand.
Director suspended Driver's license for driving while intoxicated pursuant to Section 302.505 RSMo (Supp. 1997) . Driver requested and received a trial de novo pursuant to Section 302.535. At trial, the arresting officer, Officer Hoeft, (hereinafter, "Officer Hoeft") testified that on December 22, 1999, he stopped Driver for speeding. As he approached the vehicle, he smelled intoxicants on Driver's breath. Officer Hoeft asked Driver whether he consumed any alcoholic beverages that evening, and Driver replied, "Yes." Officer Hoeft then asked Driver to step out of the vehicle, and he performed two field sobriety tests; Driver failed both tests. Based on the failure of those field tests, Officer Hoeft arrested Driver for suspicion of driving while intoxicated.
Officer Hoeft testified he observed Driver for fifteen minutes as required by Missouri Department of Health Regulations, then administered the breath analysis test to Driver. He also testified he did not see Driver place anything into, or take anything out of his mouth during the observation period. However, he could not recall if he looked into Driver's mouth, or asked him whether there was anything inside his mouth before conducting the breath analysis test. Driver submitted to the breath analysis test, and results indicated a blood alcohol concentration (hereinafter, "BAC") of .129 percent exceeding the .10 percent required under Section 302.505 to establish driving while intoxicated.
Driver testified he had chewing tobacco in his mouth prior to being stopped by Officer Hoeft, and the tobacco remained inside his mouth during the breath analysis test until after his release from the Desoto Police Department. Driver admitted evidence of his mug shot photo, indicating tobacco in his mouth, and testimony from the friend who picked him up at the Desoto Police Department. The friend testified that after they left the police department, Driver spit the tobacco onto the street.
The trial court reinstated Driver's license, giving the breath analysis test no weight because the administration of the test violated the fifteen-minute observational period set out in Mo. Code Regs. Ann. tit. 19 Section 25-30.060 (2000), in that tobacco was in Driver's mouth during the breath test. Director appeals, claiming the trial court erred in reinstating Driver's license because Director established a prima facie case for suspension and Driver did not rebut it.
We will 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. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). To establish a prima facie case for driving while intoxicated, Director must show by a preponderance of the evidence that: (1) the arresting officer had probable cause to arrest a driver for driving while intoxicated; and (2) the driver's BAC was at least .10 percent or more at the time of his arrest. Erwin v. Director of Revenue, 9 S.W.3d 37, 38 (Mo. App. E.D. 1999). The Director also ha
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