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Harper v. Director of Revenue6/8/1999
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We agree with Director's point. The exhibits offered by Director should have been received into evidence because the objections made to those exhibits had no merit. First, Driver objected to Exhibit A, the maintenance report, because it did not have a certificate of analysis attached to it. However, under the regulation in effect at the time of the trial de novo, no certificate of analysis need be attached. The trial de novo was held on June 16, 1998. On that date, the Department of Health had enacted an emergency rule which had rescinded 19 CSR 25-30.051 and enacted a new rule in its place. This new rule was effective May 4, 1998 and we apply it. See, Vilcek v. Director of Revenue, 974 S.W.2d 602, 604 (Mo. App. E.D. 1998). There is nothing in that regulation which would require the trooper to attach a certificate of analysis to the maintenance report. Therefore, Driver's objection should have been overruled.
Second, Driver objected to Exhibit B, the Department of Revenue records because he had no opportunity to confront or cross-examine the arresting officer. However, this objection also has no merit. If a record is offered under the business record exception to the hearsay rule, then an objection based on lack of opportunity to confront or cross-examine is not valid. Thebeau v. Director of Revenue, 945 S.W.2d 674, 675-76 (Mo. App. E.D. 1997); Hensley v. Director of Revenue, 884 S.W.2d 419, 420 (Mo. App. E.D. 1994).
Here, the records were offered as business records and were properly certified with an affidavit conforming to the requirements of section 490.692, RSMo 1994. The records were also provided to Driver's counsel over a year before the trial de novo. As a result, Director laid a proper foundation for the admission of the Department's business records. See, Misaruca v. Director of Revenue, 896 S.W.2d 719, 721 (Mo. App. E.D. 1995). The exhibits should have been admitted into evidence. This evidence established Director's prima facie burden of showing Driver had been arrested for probable cause and his blood alcohol content was .10 percent or more.
Here, the evidence was that on May 4, 1996, a trooper for the Missouri Highway Patrol observed Driver driving his car in an erratic manner on U.S. 67 in Madison County. Driver crossed the fog line three times (drove on the shoulder of the road) and then crossed the centerline. The trooper pulled Driver over. As he spoke with Driver, the trooper noticed a strong odor of alcoholic beverage on his breath. The trooper administered five field sobriety tests, including a portable breath test (PBT) which showed a blood alcohol level of .10 percent. The trooper arrested Driver for driving while intoxicated and transported him to the Madison County Sheriff's Department. Driver consented to a breathalyzer test. The breathalyzer test showed Driver's blood alcohol content was .12 percent.
The evidence was uncontradicted and contains no discrepancies. Therefore, the trial court erred in entering judgment in favor of Driver and ordering Director to reinstate his driving privileges. See, Reinert v. Director of Revenue, 894 S.W.2d 162, 164 (Mo. banc 1995); Keinzle v. Director of Revenue, 944 S.W.2d 326, 328 (Mo. App. S.D. 1997).
Accordingly, the judgment of the trial court is reversed. The case is remanded with instructions to the trial court to enter judgment reinstating the suspension of Driver's driving privileges.
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