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Molthan v. Director of Revenue11/28/2000
Appeal From: Circuit Court of Jackson County, Hon. Robert L. Trout
Opinion Vote: AFFIRMED.
Breckenridge and Smart, Jr., J.J., concur.
Opinion:
The Director of Revenue appeals from the judgment of the trial court setting aside the Director's revocation of Albert Molthan's driver's license for driving a vehicle with a blood alcohol content of .10 percent or more in violation of section 302.505, RSMo Cum.Supp.1999. The Director contends that the trial court erred in excluding hearsay that would identify Molthan as the driver of a vehicle. We affirm. The hearsay evidence was properly excluded, and other evidence was insufficient to establish that Molthan was, in fact, the driver of the vehicle, as was required to suspend his driver's license privileges.
The facts adduced before the trial court viewed in the light most favorable to the court's judgment are as follows. On February 24, 1999, a Kansas City police officer was dispatched to the scene of a two-vehicle collision on Interstate 70. When he arrived, both cars were parked on the right side of the highway and two men were outside of the cars. The officer testified that the two were "exchanging information" but did not otherwise identify what that information included. The officer identified one of the men as Albert Molthan.
The officer smelled an odor of intoxicating beverage coming from Molthan. He testified that Molthan was unsure of his balance and stumbling. The officer administered the horizontal gaze nystagmus test. He testified that, at maximum deviation, Molthan's eyes were "flattering" , which is a sign of intoxication. Other sobriety tests were performed at the station. The officer came to the conclusion that Molthan was intoxicated and placed him under arrest for suspicion of driving while intoxicated. At the station, Molthan took a breath test, which showed an alcohol concentration of .152 percent. The Director subsequently suspended Molthan's driving privileges under section 302.505. Molthan then filed a petition for trial de novo contesting the Director's action.
At trial, the parties stipulated that the breath analyzer was operating properly and that Molthan's alcohol test result was .152 percent. The officer admitted that Molthan never told him he was driving the car but, rather, told him that he (Molthan) was "traveling in it at the time of the accident." The state did not call the other driver as a witness. Instead, the state offered into evidence certified copies of the Director's records, which included in the arresting officer's report a statement by the other driver identifying Molthan as the driver of one of the vehicles involved in the accident. Molthan objected to the statement by the witness as hearsay. At the conclusion of the evidence, the court found against the Director.
In his sole point on appeal, the Director argues that the trial court erred in sustaining the hearsay objection to the portion of the officer's report containing the witness statement and in finding that the arresting officer did not have probable cause to arrest Molthan for driving while intoxicated. The Director argues that an officer may rely upon hearsay in establishing probable cause and that there was other circumstantial evidence that Molthan had driven the vehicle.
Included in the Director's argument is the contention that the state need not prove that Molthan was in fact driving the vehicle, but only that the officer had probable cause to believe the licensee was driving.
STANDARD OF REVIEW
The judgment of the trial court must be affirmed unless there is no substantial evidence to support it, it is against t
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