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Harper v. Director of Revenue6/8/1999
The Director of Revenue (Director) appeals from the trial court's judgment reinstating the driving privileges of Steven M. Harper (Driver) after Director suspended them following Driver's arrest for driving while intoxicated pursuant to section 302.505, RSMo Cum. Supp. 1998. At an administrative hearing, the suspension was upheld. Driver then filed a petition for a trial de novo with the circuit court as allowed by section 302.535, RSMo Cum. Supp. 1998. The circuit court reinstated Driver's driving privileges and Director appeals. We reverse and remand.
At the trial de novo on June 16, 1998, Director offered two exhibits and the testimony of Trooper Matthew Renshaw. Exhibit A contained a copy of the Datamaster Maintenance Report and evidence tickets for the breathalyzer used to test Driver. Trooper Renshaw identified the maintenance report as one he prepared on May 1, 1996. He testified that on that date, he had a Type II permit to conduct maintenance tests and he used a solution from RepCo to calibrate the machine. He further testified that the breathalyzer was operating within Department of Health specifications. When Director offered Exhibit A, Driver objected to it on the basis that the maintenance report failed to have a certificate of analysis from RepCo attached to it. The trial court took the objection to the exhibit with the case.
Director then offered Exhibit B, a copy of the Department of Revenue's business records. These records were certified by affidavit from the department's custodian of records pursuant to section 490.692, RSMo 1994. Exhibit B included a copy of the Alcohol Influence Report prepared by the arresting officer and Driver's breathalyzer test results of .12 percent. Driver objected to Exhibit B on the basis that the admission of the records violated his right to confront witnesses and cross-examine them. The court reserved ruling on the objection and took it with the case.
On July 2, 1998, the trial court entered a judgment finding the Director's action in suspending Driver's driving privileges null and void and ordered Director to immediately reinstate Driver's driving privileges. Director appeals.
On appeal, Director contends the trial court erred in setting aside Driver's suspension because its decision is against the weight of the evidence. Driver does not file a brief responding to the Director's point and we are without the benefit of Driver's arguments, if any.
The court's judgment will be affirmed unless there is no substantial evidence to support it, 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 the trial de novo, the Director had the burden of showing by a preponderance of the evidence that: (1) the arresting officer had probable cause to arrest Driver for driving while intoxicated; and (2) that Driver's BAC was at least .10 percent at the time of his arrest. Whitworth v. Director of Revenue, 953 S.W.2d 142, 143 (Mo. App. E.D. 1997). When the Director makes a prima facie case, the burden then shifts to the driver to present evidence to rebut the prima facie case by a preponderance of the evidence. Green v. Director of Revenue, 961 S.W.2d 936, 938 (Mo. App. E.D. 1998). To establish a foundation for admission of the breathalyzer test results, Director must demonstrate that section 577.020 was followed in that the test was performed: (1) by following the approved methods and techniques of the Department of Health; (2) by persons holding a valid permit; and (3) on equipment and devices approved by the Department of Health. Rogers v. Director of Revenue, 947 S.W.2d 475, 477 (Mo. App. E.D. 1997).
Page 1 2 Missouri DUI Attorneys
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