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Middleton v. Director of Revenue5/13/1999
REVERSED AND REMANDED WITH DIRECTIONS.
The Director of Revenue (Director) appeals the circuit court's order restoring the driving privileges of McLean R. Middleton (Driver) after they had been revoked under the administrative revocation provision of section 302.505.1.
Driver's revocation had been sustained after an administrative hearing and Driver filed a petition for trial de novo in circuit court, pursuant to section 302.535. After a hearing, the circuit court restored Driver's driving privileges. The "Judgment Order" recited that "[Director] failed his burden to establish that [Driver] tested .10% or more of blood alcohol content at the time of operation of a motor vehicle." Director raises two points of trial court error, discussed below.
The uncontroverted evidence shows that Driver was stopped for speeding by a Missouri State Highway trooper at 1:20 a.m. on October 18, 1997. The trooper smelled a strong odor of intoxicants about Driver and noted that Driver's eyes were glassy and bloodshot, that his speech was slurred and mumbling, and that his balance was swayed. Driver admitted drinking vodka that evening.
The trooper asked Driver to perform various field sobriety tests including the horizontal gaze nystagmus test, the alphabet test and the backward counting test. Driver failed each test. He was not asked to perform other tests because he and the trooper were stopped on a hill. Believing Driver to be intoxicated, the trooper arrested Driver at l:35 a.m. Subsequently, a breath test administered to Driver at 2:02 a.m. showed he had a blood alcohol concentration of .10%. At the time of the arrest, Driver was 17 years old.
At trial, the parties stipulated to the admissibility of that portion of the trooper's alcohol influence report which recited the reasons for trooper stopping Driver and Driver's failure of the field sobriety tests. Additionally, the parties agreed that the breath test administered to Driver showed a blood alcohol content by weight at .10%.
Much of the contested evidence at trial centered around whether Driver's blood alcohol content, at the time he was operating a motor vehicle and was stopped by the trooper, exceeded the legal limit of .10%. Driver testified that he weighed 150 pounds. He stated that before his arrest that morning he had drunk three vodka slushes, each containing approximately 2 ounces of vodka, at ll:00 p.m., 11:40 p.m. and at 12:10 a.m., which he finished at 12:45 a.m. He then presented an expert witness who estimated that Driver's blood alcohol level was between .083% and .093% when trooper stopped Driver at 1:20 a.m. Therefore, Driver argued that despite his alcohol content registering .10% at the time trooper administered the breath analysis test at 2:02 a.m., at the time he was operating his motor vehicle and stopped by the trooper, Driver was not in violation of the provisions of section 302.505.1.
In closing argument, Director argued that even if the trial court did not accept Director's evidence that Driver was operating a motor vehicle with a blood alcohol content of .10%, Driver was, nevertheless, in violation of the provisions of sections 302.505 - .510. Director maintained that the evidence clearly showed that Driver was under the age of 21 and was operating his motor vehicle with a blood alcohol content between .02% and .099%. The trial court, however, rejected Director's contentions stating "that's not an issue in this case."
In her first point of trial court error, Director asserts that the trial court erred in setting aside the suspension of Driver's driving privileges under section 302.505 because Director had proven that the trooper h
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