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Hackmann v. Director of Revenue5/18/1999
0 percent or more and ordered driver's driving privileges reinstated.
In her first point on appeal, the Director argues that the trial court erred in excluding the certificate of analysis for the simulator solution and the results of the breathalyzer test because they were properly certified as business records.
At trial and on appeal, both parties have focused upon the admissibility of the certificate of analysis contained in Exhibit C as a business record of the Missouri Highway Patrol. Respondent's primary argument on appeal is that the certificate of analysis did not contain a date; thus, it could not be determined if it was prepared at or near the time of the event, as required by section 490.680. Nonetheless, whether the certificate of analysis contained in Exhibit C was a business record pursuant to section 490.680 is irrelevant under our analysis of this case. Instead, we focus on whether the certificate of analysis contained in Exhibit D was admissible as a business record of the Department of Revenue pursuant to section 302.312.
Section 302.312.1 provides as follows:
"Copies of all papers, documents, and records lawfully deposited or filed in the offices of the department of revenue or the bureau of vital records of the department of health and copies of any records, properly certified by the appropriate custodian or the director, shall be admissible as evidence in all courts of this state and in all administrative proceedings."
Unlike section 490.680, section 302.312 contains no requirement that the records be made at or near the time of the event. Instead, copies of documents from the Department of Revenue are admissible as evidence if the copies are properly certified by the appropriate custodian or the Director. Mills v. Director of Revenue, 964 S.W.2d 873, 875 (Mo.App. E.D. 1998); see also Dugan v. Director of Revenue, 979 S.W.2d 563, 564 (Mo.App. W.D. 1998).
Here, the Director offered records from the Department of Revenue to the trial court in the form of Exhibit D. The record reveals that the records were certified by the custodian of records for the Department of Revenue. This certification included the following language: "It is further certified pursuant to Section 302.312 RSMo., that the records attached hereto are exact duplicates of the original records lawfully filed or deposited with the Department of Revenue by the reporting agency or entity pursuant to the provisions of Chapters 302, 303 and/or 577 RSMo." Therefore, Exhibit D was admissible and the trial court erroneously applied the law in excluding the certificate of analysis. See Brooks v. Director of Revenue, 979 S.W.2d 257, 261 (Mo.App. S.D. 1998); Coleman v. Director of Revenue, 970 S.W.2d 394, 397 (Mo.App. S.D. 1998); Mills, 964 S.W.2d at 875-76.
In her second point on appeal, the Director maintains that the trial court erred in reinstating driver's driving privileges because the trial court's decision was against the weight of the evidence.
The record indicates that after the trial court excluded the Director's evidence, it entered an order reinstating driver's driving privileges before driver had an opportunity to present evidence. Therefore, we reverse the trial court's judgment and remand for further proceedings consistent with this opinion. See Dickerson v. Director of Revenue, 957 S.W.2d 478, 481 (Mo.App. E.D. 1997).
Judgment reversed and remanded.
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