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Wilcutt v. Director Of Revenue5/30/2000
Appeal From: Circuit Court of Cape Girardeau County, Hon. William L. Syler
Opinion Vote: REVERSED AND REMANDED. Russell, C.J. and Hoff, J., concur.
Opinion:
Director of Revenue ("Director") appeals from the trial court's judgment reinstating the driving privileges of Roy M. Wilcutt ("Driver") and setting aside Director's order suspending Driver's driver's license under Section 302.505 for driving a motor vehicle with a blood alcohol concentration of at least .10% by weight. The trial court found that Director failed to sustain his burden of proof for the admissibility of Driver's breathalyzer test results. We reverse and remand.
On May 14, 1998, a Missouri State Highway Patrol officer stopped Driver's car for a broken headlight. Upon contact with Driver, the officer smelled a strong odor of intoxicants on Driver's breath. The officer also noticed Driver's eyes were watery, bloodshot, glassy, and Driver's pupils reacted poorly to light. Additionally, the officer observed Driver to be unsteady on his feet. Driver agreed to perform several field sobriety tests, the results of which indicated to the officer that Driver was intoxicated.
The officer arrested Driver for driving while intoxicated and transported him to the sheriff's office. Driver consented to take a breathalyzer test, the results of which determined Driver's blood alcohol concentration to be .109%. Director suspended Driver's driver's license under Section 302.505 for driving a motor vehicle with a blood alcohol concentration of at least .10% by weight. The suspension was upheld after an administrative hearing.
Driver filed a Petition for Trial De Novo in the Cape Girardeau County Circuit Court pursuant to Section 302.535. At trial on January 26, 1999, Director's evidence consisted of the following: (1) a copy of 19 CSR 25-30.051 effective October 30, 1998; (2) testimony of the officer who maintained the DataMaster and is a Type II permit holder from the Department of Health; (3) an affidavit from Rock Creach from the Department of Health; (4) the Datamaster Maintenance Report dated April 28, 1998; (5) a RepCo Marketing, Inc. Certificate of Analysis for the simulator solution; and (6) Department of Revenue records containing the arresting officer's Alcohol Influence Report, including a DataMaster checklist and a printout of Driver's breathalyzer test results.
Driver objected to the admission of the breathalyzer test results because the certificate of analysis did not comply with the version of 19 CSR 25-30.051 in effect at the time of the maintenance report and because Director failed to prove who made and supplied the solution.
The trial court found the certificate of analysis defective and deficient in that it did not comply with the version of 19 CSR 25-30.051 in effect at the time of the maintenance report. The court also found that the emergency version of 19 CSR 25-30.051 effective May 4, 1998, did not apply retroactively because it was not purely procedural and that the Department of Health did not have the authority to promulgate emergency rules. Thus, the trial court applied the version of 19 CSR 25-30.051 in effect at the time of the maintenance report.
In July 1999, the trial court set aside the suspension of Driver's driver's license finding that Director failed to sustain his burden of proof for the admissibility of Driver's breathalyzer test results, and therefore failed to show that Driver's blood alcohol concentration was .10% or greater.
Director alleges trial court error in reinstating the driving privileges of Driver and setting aside Director's order suspending Driver's driver's license under Sect
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