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Rhodes v. Director of Revenue6/18/1999
At 2:30 a.m., June 23, 1997, a patrolman of the Missouri State Highway Patrol saw a motor vehicle exceeding the speed limit in a "construction zone." The patrolman stopped the vehicle; its operator was Patrick J. Rhodes ("Driver").
At the patrolman's request, Driver performed six "field sobriety tests." Driver's performance, coupled with the result of a "portable breath test" administered by the patrolman, convinced the patrolman that Driver was intoxicated. Accordingly, the patrolman arrested Driver for driving while intoxicated at 2:42 a.m. and took him to the local sheriff's office where, at 3:27 a.m., the patrolman, using a "BAC DataMaster," administered a "breath test" to Driver to determine the alcohol concentration in his blood. The test showed an alcohol concentration of .12 percent.
Pursuant to section 302.505, the Director of Revenue ("Director") suspended Driver's motor vehicle operator's license. The suspension was upheld after administrative review, whereupon Driver filed a petition for trial de novo per section 302.535.
Following the presentation of evidence, the trial court found the patrolman had probable cause to arrest Driver for driving while intoxicated, but that the alcohol concentration in Driver's blood "was not .10% or greater at the time he was operating his vehicle." Consequently, the trial court set aside Director's suspension of Driver's license.
Director appeals. Director's sole point relied on avers:
"The trial court erred in setting aside the suspension of Driver's driving privileges under section 302.505 . . . because the Director proved a prima facie case that Driver's BAC was at least .10% in that the Director offered into evidence Driver's breath test result showing his blood alcohol content was .12% and Driver did not rebut the Director's prima facie case by showing that the blood alcohol content was actually lower than .10%."
To suspend Driver's license, Director was required to demonstrate, by a preponderance of the evidence, that (1) Driver was arrested upon probable cause to believe he was driving while intoxicated, and (2) the alcohol concentration in Driver's blood was in fact ten-hundredths of one percent or more by weight at the time he was driving. Halmich v. Director of Revenue, 967 S.W.2d 693, 695 (Mo.App. E.D. 1998); Whitworth v. Director of Revenue, 953 S.W.2d 142, 143 (Mo.App. E.D. 1997); Kienzle v. Director of Revenue, 944 S.W.2d 326, 327 (Mo.App. S.D. 1997); Brandom v. Director of Revenue, 931 S.W.2d 510, 511 (Mo.App. S.D. 1996). Inasmuch as the trial court found Director satisfied the first element, only the second element is in issue in this appeal.
Director makes a prima facie case on the second element if Director establishes by credible and competent evidence that proper chemical analysis showed a motor vehicle operator's blood alcohol concentration was ten-hundredths of one percent or more by weight. Andersen v. Director of Revenue, 944 S.W.2d 222, 223 (Mo.App. W.D. 1997), citing Collins v. Director of Revenue, 691 S.W.2d 246, 252 (Mo. banc 1985). Once Director presents a prima facie case, the burden shifts to the motor vehicle operator to establish by a preponderance of the evidence that his blood alcohol concentration was less than ten-hundredths of one percent by weight at the time he was driving. Green v. Director of Revenue, 961 S.W.2d 936, 938 (Mo.App. E.D. 1998); Andersen, 944 S.W.2d at 223-24.
Driver testified he consumed no alcoholic beverage on June 22, 1997, until "between 9:30 and 10:00" that evening. At that time, avowed Driver, he arrived at Rock Lane Lodge and began drinking a can of beer. Driver testified he drank two more
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