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Wilcutt v. Director Of Revenue5/30/2000
ion 302.505 because the trial court misinterpreted and misapplied the law and its decision was against the weight of the evidence in that the arresting officer had probable cause to arrest Driver for driving while intoxicated and Driver's blood alcohol concentration exceeded .10%.
The trial court's judgment will be affirmed unless it is unsupported by substantial evidence, 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).
At trial, the director has the burden of establishing a prima facie case for suspension of a driver's license. Hurley v. Director of Revenue, 982 S.W.2d 694, 696 (Mo.App. E.D. 1998). To meet this burden, the director must show by a preponderance of the evidence that at the time of the arrest: (1) there was probable cause for arresting the driver for driving while intoxicated; and (2) the driver's blood alcohol concentration was .10% or greater. Guccione v. Director of Revenue, 988 S.W.2d 649, 652 (Mo.App. E.D. 1999). To establish a foundation for admission of breathalyzer test results, the director must show that the test was performed (1) according to techniques and methods approved by the Department of Health; (2) by an operator holding a valid permit; and (3) using equipment and devices approved by the Department of Health. Id. Once the director has established a prima facie case, the burden shifts to the driver to present evidence to rebut the prima facie case by a preponderance of the evidence. Id. The burden is high to rebut the director's prima facie case, and it must be done with evidence, not by merely pointing out inconsistencies. Hurley, 982 S.W.2d at 696-697.
Although the trial court made no findings regarding whether probable cause existed for arresting Driver for driving while intoxicated, the evidence supports such a conclusion. Probable cause exists when circumstances and facts would warrant a person of reasonable caution to believe an offense has been committed. Guccione, 988 S.W.2d at 654. The determination of whether a police officer has probable cause to arrest must be made in relation to circumstances as they appeared to a prudent, cautious, and trained police officer. Id.
The officer's written statement regarding Driver's arrest is contained in the Alcohol Influence Report. After stopping Driver's car for a broken headlight, 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. This evidence is sufficient to establish that the officer had probable cause to arrest Driver for driving while intoxicated.
At the time of Driver's arrest, the emergency version of 19 CSR 25-30.051 was in effect. At the time of trial, the current version of 19 CSR 25-30.051, identical to the emergency version, was in effect. The version prior to the emergency version, in effect at the time of the maintenance report, required a certificate of analysis to state the name of the supplier, the lot or batch number of the solution, the ethanol concentration in aqueous solution and vapor solution, and the expiration date. The emergency and current version require only that the maintenance report show the solution was from an approved supplier. Approved suppliers include: Alcohol Countermeasure, Inc.; Guth Laboratories, Inc.; and RepCo Marketing, Inc.
We recently have decided several cases involving the issue presented
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