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Combs v. Director of Revenue4/27/1999
This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.
Missouri Court of Appeals Eastern District
Appeal From: Circuit Court of St. Louis County, Hon. Dennis J. Quillin
Citation:
Opinion Vote: REVERSED AND REMANDED. Hoff, P.J., and Russell, J., concur.
Opinion:
Appellant, the Director of Revenue ("Director"), appeals the judgment of the Circuit Court of St. Louis County reinstating the driving privileges of respondent, Todd David Combs ("driver"), after Director suspended them pursuant to RSMo section 302.505 (Cum.Supp. 1998). We reverse and remand.
Director suspended the driving privileges of driver after he was arrested for driving while intoxicated. After an administrative hearing, Director upheld the suspension and driver petitioned for a trial de novo pursuant to RSMo section 302.535 (Cum.Supp. 1998).
A trial was held on April 28, 1998. At the trial, Officer Greg Zveitel of the Sunset Hills Police Department testified that on the evening of September 24, 1997, he was parked in a commuter lot at the intersection of Old Gravois and Kennerly Road. He observed driver's vehicle run the stop sign at that intersection while traveling at a high rate of speed. Driver made a right turn onto Old Gravois without even pausing at the stop sign. Due to his speed, driver had to travel into the oncoming traffic lane. Driver then accelerated hard, causing his tires to squeal. Driver came upon the rear of another vehicle quickly and had to slam on his brakes to avoid a collision. Officer Zveitel pulled driver's vehicle over.
While Officer Zveitel talked with driver, he noticed a moderate odor of alcohol upon driver's breath. Driver's speech was noticeably slurred and his eyes were bloodshot. Driver admitted that he had been drinking. Zveitel gave one field sobriety test to driver, which driver completed properly. At this time, Zveitel's assist was having trouble with driver's passenger. Zveitel felt the location was unsafe and decided to arrest driver for violation of running the stop sign, improper lane use and following too closely. Zveitel then transported driver to the police department.
At the police station, Zveitel conducted two additional field sobriety tests, the walk-turn and one-leg stand. Following these tests, Zveitel also arrested driver for driving while intoxicated. Driver consented to a breathalyzer test. After observing driver for 15 minutes and preparing a checklist, Zveitel administered the test. It revealed driver's blood alcohol content ("BAC") was .133 percent.
At the hearing, Director offered Exhibit A (checklist), Exhibit B (printout of breath test results), Exhibit C (maintenance report and attachments) and Exhibit D (driver's driving record). Exhibit C included a copy of a maintenance report prepared on August 29, 1997 for the Datamaster used to test driver's BAC, as well as a copy of the certificate of analysis from Guth Laboratories for Lot No. 97120 of simulator solution. The exhibit was certified by affidavit from David Toler, custodian of the maintenance records for Sunset Hills Police Department.
When Exhibit C was offered, driver objected to it on the grounds it contained double hearsay and did not fall within the business records exception of RSMo section 490.692 (1994) and the certificate of analysis failed to conform to the Department of Health regulations. The court overruled the first objection, but took the second objection under advisement. Driver also objected to the admission of Exhibits A & B on the same grounds and the court took them as submitted, pending the ruling on
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