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Reynolds v. Director of Revenue6/20/2000
Appeal From: Circuit Court of Lafayette County, Hon. John G. Miller
Opinion Vote: REVERSED AND REMANDED.
Lowenstein and Ulrich, JJ., concur.
Opinion:
The Director of Revenue appeals the judgment of the trial court reinstating Michael Reynolds's driving privileges. The Director challenges the trial court's decision that the Director failed to prove Mr. Reynolds had a blood alcohol concentration of at least .10% because the evidence offered by the Director was not sufficient to prove that the simulator solution used in the breath analyzers was from an approved supplier. Because this court finds that the Director offered sufficient evidence to prove that the simulator solution used was from an approved supplier, the trial court's judgment is reversed and the cause is remanded with directions to reinstate the Director's suspension of Mr. Reynolds's driving privileges.
Factual and Procedural History
On May 8, 1997, Mr. Reynolds was arrested in Lafayette County for driving while intoxicated. Mr. Reynolds consented to a breath test, which was administered using a BAC Verifier breath analyzer. The test result showed a blood alcohol concentration of .304 %. Mr. Reynolds requested a second test, which was administered on a DataMaster breath analyzer. The result from the second test showed a blood alcohol concentration of .28%. Upon receipt of a report of this information, the Director suspended Mr. Reynolds's driving privileges under section 302.505, RSMo Cum. Supp. 1999, for driving with a blood alcohol concentration of .10% or more. The decision was upheld after an administrative hearing, and Mr. Reynolds filed a petition for a trial de novo pursuant to section 302.535.
The trial de novo was held on April 30, 1999. Before the Director put on any evidence at the trial de novo, the trial court asked if there were any preliminary matters. Defense counsel told the court that he agreed to stipulate that the arresting officer had probable cause to arrest Mr. Reynolds for driving while intoxicated, but that he disputed the admissibility of the test results indicating that Mr. Reynolds's blood alcohol content (BAC) was .10% or more at the time of his arrest. Defense counsel stated, "We're -- we are obviously agreeing that -- that the test results exceeded the legal limit. But our problem is that we don't feel the Director can get there based upon the evidence and the record on the certificate of analysis of the testing solution." The trial court admitted the test results indicated that the manufacturer of the simulator solution in Lot Number 96004, used by Trooper Hughes to maintain the DataMaster, was "Rep Co Marketing, Inc." The officer testified that he used simulator solution he obtained from Highway Patrol Troop A's supply and that the solution came in a sealed box that included a certificate of analysis. The officer also testified that the label on the bottle of simulator solution he used to maintain the breath analyzer stated "RepCo." The certificate of analysis accompanying the sealed box of simulator solution was also included in Exhibit A. The certificate of analysis for Lot Number 96004 was on RepCo Marketing, Inc. letterhead and was signed by Cecil B. Garner, President, RepCo Marketing, Inc.
Mr. Reynolds did not offer any evidence, and the trial court took the case under advisement. On May 11, 1999, the trial court issued a judgment reinstating Mr. Reynolds's license. The judgment stated that the Director failed to carry his burden of proof and persuasion. Specifically, the trial court found the Director failed to prove that the simulator solutions used in each of the two breath tests were from an approved suppl
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