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Guccione 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 St. Charles County, Hon. Ellsworth Cundiff
Citation:
Opinion Vote: REVERSED AND REMANDED WITH DIRECTIONS. Pudlowski, P.J., Crandall, and Ahrens, JJ., concur.
Opinion:
The Director of Revenue (Director) appeals from the trial court's judgment reinstating Andrew H. Guccione's driving privileges that were suspended by the Director following Guccione's arrest for driving while intoxicated. We reverse and remand.
On September 28, 1997, a Missouri State Highway Patrol trooper stopped a vehicle driven by Guccione after the vehicle crossed the shoulder and center line several times. The trooper observed that Guccione's eyes were red and glassy. The trooper smelled alcohol on Guccione's breath. Guccione admitted drinking two beers. Guccione failed field sobriety tests conducted by the trooper. The trooper arrested Guccione for driving while intoxicated and took him to a county jail. Guccione consented to a breath test. The breath test administered by the trooper showed a blood alcohol content of .103%.
After an administrative hearing officer upheld the suspension of Guccione'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's evidence consisted of Missouri Highway Patrol and Department of Revenue records. The Director offered the two exhibits, with accompanying affidavits, as business records pursuant to section 490.692 RSMo. 1994. The evidence included: (1) the Alcohol Influence Report prepared by the trooper; (2) the Blood Alcohol Test Report prepared by the trooper; (3) the Datamaster Maintenance Report dated September 8, 1997; and (4) the certificate of analysis for the simulator solution from RepCo Marketing Inc.
The trial court found that the maintenance report did not comply with the requirements of 19 CSR 25-30.051(3) and (4), the certificate of analysis did not contain the information required under 19 CSR 25-30.051(1), the arresting officer's written statement in the Alcohol Influence Report as to the existence of a permit to operate the breathalyzer was inadmissible hearsay, and the certification portion of the Blood Alcohol Test Report was not complete in that the certification by the officer was not properly checked. Based on these findings, the court concluded that the Director failed to meet the burden for admissibility of the breath test results and therefore the Director failed to show that Guccione's blood alcohol content was .10% or greater. The court reinstated Guccione's driving privileges. The Director appeals from this judgment.
The judgment of the trial court will be affirmed unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Reinhold v. Director of Revenue, 961 S.W.2d 904, 905 (Mo. App. E.D. 1998). To establish a prima facie case at trial, the Director had the burden of showing by a preponderance of the evidence that (1) the arresting officer had probable cause to arrest the driver for driving while intoxicated, and (2) at the time of the arrest, the driver's blood alcohol content was .10% or greater. Plank v. Director of Revenue, 982 S.W.2d 811, 814 (Mo. App. E.D. 1998). When the Director makes a prima facie case, the burden then shifts to the driver to rebut the prima facie case by a preponderance of the evidence. Id.
To establish a proper foundation for admission of a breathalyzer test, the Director mu
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