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Harris v. Director of Revenue4/6/1999
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 the City of St. Louis, Hon. John A. Clayton
Citation:
Opinion Vote: REVERSED AND REMANDED. Crahan and Teitelman, JJ., concurs.
Opinion:
The Director of Revenue ("Director") appeals from the circuit court's judgment reinstating the driving privileges of Joann Harris ("Driver") after Director suspended them pursuant to sections 302.505 RSMo Cum.Supp.1998 and 302.525 RSMo 1994. We reverse and remand.
On October 25, 1996, Driver was stopped at a sobriety checkpoint in St. Louis. When Driver rolled down the window of her vehicle to speak with Officer McGinnis of the City of St. Louis police department, he immediately detected the smell of alcoholic beverage on her breath and noticed that her eyes were red and watery. Driver failed two field sobriety tests and Officer McGinnis arrested her for driving while intoxicated. Driver agreed to take a breath analysis test. The test displayed a blood alcohol concentration ("BAC") of 0.17 percent. Based upon these results, Driver's driving privileges were suspended. The suspension was upheld after administrative review.
Driver filed a petition for a trial de novo with the circuit court. At trial on December 1, 1997, the parties stipulated to the admission of evidence subject to written and narrative objections and submitted the case on the record. Director offered two exhibits as evidence. Exhibit A was a certified copy of the St. Louis City ordinance regarding driving while intoxicated which was in effect at the time of Driver's arrest. Exhibit B, which Director offered as a business record, included: (1) the alcohol influence report filed by the arresting officer, (2) the maintenance report for the DataMaster machine with the maintenance checklist, (3) the BAC DataMaster evidence ticket from Driver's breath test, (4) the certificate of analysis for the simulator solution used to calibrate the DataMaster, (5) a citation for operating a motor vehicle while intoxicated, and (6) affidavits from the records custodian of the Department of Revenue- DWI Division certifying that the records were business records kept in accordance with section 490.692 RSMo 1994.
Driver objected to certain portions of the alcohol influence report based on lack of foundation. Driver also objected to the admission of the certificate of analysis because Director failed to comply with 19 CSR 25-30.050(4) in that the supplier of the simulator solution was administratively dissolved, there was no evidence that RepCo Marketing Inc. manufactured the solution, the certificate of analysis contained double hearsay and Director did not offer evidence that the simulator used to calibrate the DataMaster breathalyzer was itself calibrated. Based upon these objections, the trial court excluded the certificate of analysis, the maintenance report, checklist, and test results printout. The court found that Officer McGinnis had probable cause to arrest Driver for driving while intoxicated, but that Driver did not have a BAC of 0.10 percent or more by weight. The court reinstated Driver's driving privileges. Director appeals.
Director asserts that: (1) she established a proper foundation to admit the maintenance report under 19 CSR 25-30.051, (2) the certificate of analysis for the simulator solution is not a false affidavit and does not contain double hearsay, (3) the administrative dissolution of the simulator solution supplier does not render certificate of analysis void, and (4) the trial court's decision was agains
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