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Brussel v. Director of Revenue2/25/1998
Opinion Summary:
Driver appeals from the trial court's judgment suspending his driver's license following a trial de novo. Driver asserts the state failed to lay a proper foundation for admission of his breathalyzer test results, and the evidence did not support the trial court's finding that the arrest took place on the date stated in the judgment.
AFFIRMED AND REMANDED.
Division Two holds: The trial court did not err in adopting the commissioner's findings and recommendations because substantial evidence supported those findings in that the state laid a sufficient foundation for admission of the driver's breathalyzer test results. The cause is remanded for the trial court to correct the date of the offense.
Opinion Vote: AFFIRMED AND REMANDED. Crane, P.J., J. Dowd, J., concur.
Opinion:
Mark Brussel ("driver"), appeals from the judgment of the trial court ordering the suspension of his driver's license following a trial de novo. Driver contends that the state failed to lay a proper foundation for admission of the results of his breathalyzer test. He also alleges that the trial court erred in adopting the commissioner's findings and recommendations in that the evidence did not support that the arrest took place on the date stated therein. We affirm the trial court's order, but remand for the court to correct the date of the offense.
Driver was arrested and charged with driving while intoxicated. The arresting officer administered a breath analysis test using an Intoxilyzer 5000. The test reflected that driver's blood alcohol content exceeded .10 percent, placing him in violation of section 302.505 RSMo 1994.
Driver was notified by the Director of Revenue ("Director") that his driver's license was suspended pursuant to sections 302.520 through 302.540. Pursuant to section 302.530, an administrative hearing was held, and the decision to suspend driver's license was sustained. Driver petitioned the circuit court for a trial de novo pursuant to section 302.535.
The arresting officer testified that he observed driver for at least fifteen minutes prior to administering the test during which time driver did not smoke, vomit, or orally intake any material. The officer stated that he followed all the steps on the checklist, and that the Intoxilyzer 5000 appeared to function properly.
Officer Michael Feick also testified regarding the maintenance of the Intoxilyzer 5000. Feick stated that he held a Type II permit authorizing him to perform maintenance inspections. He testified that he performed a maintenance inspection on September 29, 1996. Feick stated that he followed the procedures outlined by the Department of Health ("Department"), and that the three calibration tests were within the Department's specifications.
Regarding the simulator temperature, Feick testified that the maintenance report he filled out at the time of the maintenance inspection reflected a temperature of 35 degrees. However, he stated that when he wrote 35 degrees on the maintenance report it was a mistake as that temperature would be outside of the Department's specifications. Feick explained that the simulator thermometer displays 34 degrees in the center of the gauge with increments of .1 degrees plus or minus to either side. He testified that the test reading was plus .1, and he inadvertently wrote down "35 degrees" rather than the accurate reading of 34.1 degrees. Feick further testified that had the temperature reading not fallen within Department specifications, he would not have checked the box on the report form next to that reading. He stated that if the simulator had been outside proper o
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