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Schulte v. Director of Revenue6/22/1999
This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.
Appeal From: Circuit Court of Morgan County, Hon. Patricia F. Scott
Opinion Vote: REVERSED AND REMANDED. Breckenridge, P.J., Hanna and Ellis, JJ., concur.
Opinion:
On October 6, 1997, after noticing that Randy Robert Schulte's Chevy truck had no taillights, a Missouri State Highway Patrol trooper followed his vehicle. While following his pickup truck, the trooper observed Schulte weaving in his lane. After Schulte's truck touched the centerline, the trooper stopped him. The trooper observed that Schulte's eyes were glassy and his speech was slurred, mumbling, and stuttering. The trooper also detected a moderate odor of intoxicants coming from the truck's cab. As a result, the trooper ordered Schulte to sit in his patrol car. Once he was seated in the patrol car, the trooper noticed a moderate odor of intoxicants on Schulte's breath. Schulte admitted drinking three and one half beers since he had finished work.
After noticing that Schulte was swaying, the trooper administered field sobriety tests. Schulte was able to count from 42 to 63 and backwards from 63 to 42, but failed the horizontal gaze nystagmus test. A portable breath test indicated that Schulte's blood alcohol level was well above 0.10%. The trooper asked Schulte to perform a walk-and-turn. Schulte had trouble following the trooper's directions and swayed while attempting to remain balanced. Before starting the test, Schulte told the trooper, "Sir, just take me to jail," and put his hands out in front of him. At that point, Schulte was placed under arrest for driving while intoxicated. Schulte was taken to the Morgan County jail, where he consented to a breath analysis test and being read his rights under the Missouri Implied Consent Law. The breath test indicated a blood alcohol content of 0.20%.
After an administrative hearing officer upheld the suspension of Schulte's driving privileges, he filed a petition for a trial de novo pursuant to section 302.535, RSMo. Cum. Supp. 1997. At trial, the Director of Revenue (hereinafter "Director") offered records of the Department of Revenue detailing Schulte's arrest and breath test results and records of the Department of Health, which included the maintenance report and certificate of analysis for the breath analyzer used in Schulte's test as business records pursuant to section 490.692. The trial court refused to admit the records into evidence for failing to comply with the requirements of 19 CSR 25-30.051. The trial court found the manufacturer's certificate of analysis for the simulator solution used to calibrate the breath analyzer machine to be inadmissible because the Director failed to lay a proper foundation for its admission under the business records exception to the hearsay rule. Based on these findings, the court concluded that the Director failed to meet the burden of admissibility of the breath test results. As a consequence, the Director was unable to demonstrate that Schulte's blood alcohol level exceeded 0.10%. The trial court sustained Schulte's motion for a directed verdict and reinstated his driving privileges and purged the administrative alcohol suspension from his driving record. The director appeals from this judgment.
The Director raises two points on appeal. First, the Director alleges that the trial court erred by refusing to admit the maintenance report and certificate of analysis for the breath analyzer, which were valid under 19 CSR 25-30.051. Second, the Director contends that the trial court's judgment sustaining Schulte's motion for a directed verdict and setting aside the suspension o
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