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Middleton v. Director of Revenue5/11/1999
test result is admitted in evidence without objection. Reinert v. Director of Revenue, 894 S.W.2d 162, 164 (Mo. banc 1995); Sellenriek v. Director of Revenue, 826 S.W.2d 338, 339-41 (Mo. banc 1992); see also, Jurgiel v. Director of Revenue, 937 S.W.2d 397, 399 (Mo. App. 1997); Reed, 834 S.W.2d at 837. Therefore, proof of compliance with 19 CSR 25-30.051 only becomes an issue if a proper, timely objection is made to the admission of the breath test results. Although petitioner objected to the admission of the maintenance report and certificate of analysis, he never objected when Officer Russ testified that his BAC was .194 percent. As a consequence, the test results were received into evidence and proof of compliance with regulation 19 CSR 25-30.051 was not required.
Director met her burden of proof by presenting evidence that showed petitioner's BAC was .10 percent or more. Petitioner offered no evidence contesting or rebutting this evidence, failing to adduce any evidence that his BAC was below .10 percent. Accordingly, there is no evidence to support the trial court's Conclusion that petitioner's BAC was not .10 percent or more and the trial court's judgment is against the weight of the evidence.
Based on our decision in Point I, we need not address Director's second point on appeal regarding the admissibility of the maintenance report and certificate of analysis.
The judgment of the trial court is reversed and remanded for the trial court to enter a judgment reinstating petitioner's suspension.
Separate Opinion: None
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