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Robinson v. Director of Revenue6/1/1999
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. Louis County, Hon. Robert S. Cohen
Citation:
Opinion Vote: REVERSED AND REMANDED WITH INSTRUCTION. Gaertner, and Rhodes Russell, JJ., concur.
Opinion:
The Director of Revenue (Director) appeals from the trial court's judgment setting aside the suspension of Joyce Wilma Robinson's (Driver) driving privilege. Director challenges the trial court's decision that Director failed to prove Driver had a blood alcohol concentration of at least .10% because the certificate of analysis for the simulator solution used to calibrate the breath analyzer failed to comply with Department of Health regulations. We reverse and remand.
On November 7, 1997, Driver was involved in a two-vehicle accident. A Town and Country police officer arrived at the scene of the accident and arrested the driver of the other vehicle for driving while intoxicated. The officer then spoke with Driver and "noticed a strong odor of an intoxicating beverage on her breath and her eyes were bloodshot and glassy." Driver responded affirmatively when the officer asked whether Driver had consumed any alcoholic beverages. The officer asked Driver to perform several field sobriety tests, the results of which indicated to the officer that Driver was intoxicated.
The officer arrested Driver for driving while intoxicated and took her to the police station where she consented to a breath test. The result of Driver's breath test showed her blood alcohol concentration was .146%. Subsequently, Director suspended Driver's driving privilege for driving with a blood alcohol concentration of at least .10% under Section 302.505 RSMo Cum. Supp. 1997.
Driver filed a petition for trial de novo in St. Louis County Circuit Court under Section 302.535(1). In April 1998, in lieu of a trial, the parties entered into a stipulation. In this stipulation, the parties agreed the officer had probable cause to arrest Driver for driving while intoxicated. Also, Director offered his records, including his maintenance records on the breath analyzer, to the trial court. Driver objected to the results and maintenance records submitted by Director because the "Repco Certificate of Analysis fails to comport with the language of 19 CSR 25-30.051(1)." The commissioner considering the matter set aside Driver's suspension upon finding Driver did not have a blood alcohol concentration of at least .10% because the certificate of analysis did not comply with Department of Health regulations. The trial court adopted the commissioner's findings and recommendations as the court's judgment. Director appeals from the court's judgment.
The trial court's judgment will be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). We accord substantial deference to the trial court's rulings on the admissibility of evidence and do not disturb such rulings unless we find an abuse of discretion. Kafoury v. Director of Revenue, 983 S.W.2d 188, 189 (Mo. App. E.D. 1998).
In his first point, Director argues the trial court erred because the certificate of analysis and maintenance report were valid under 19 CSR 25-30.051 in that Director was only required to prove that a solution certified by the supplier was used to calibrate the breath analyzer. Director also argues the certificate of analysis was valid because it certified the simulator solution ha
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