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Testerman v. Director of Revenue11/7/2000
Appeal From: Circuit Court of Benton County, Hon. Larry M. Burditt
Opinion Vote: REVERSED AND REMANDED.
Ulrich and Ellis, JJ., concur.
Opinion:
The Director of Revenue (Director) appeals from the judgment of the circuit court reinstating the driver's license of the respondent, Gale Ann Testerman, after it had been administratively suspended by the Director for the respondent's driving with a blood alcohol concentration (BAC) of .10% or more, pursuant to section 302.505.1.
In his sole point on appeal, the Director claims that the trial court erred in reinstating the respondent's driver's license because he made a prima facie case for suspension under section 302.505.1, which was not rebutted by the respondent.
We reverse and remand.
Facts
On February 21, 1999, Officer Rodney Bonner of the Warsaw Police Department observed the respondent drive her truck across the center line of an outer road in Warsaw, Missouri. In response, he activated his patrol lights and stopped the respondent's vehicle. After approaching the vehicle to issue a citation, the officer smelled the odor of intoxicants coming from the vehicle. Under questioning by Officer Bonner, the respondent admitted that she had been drinking. As a result, Officer Bonner administered three field sobriety tests which, in his opinion, the respondent failed. Officer Bonner placed the respondent under arrest for DWI, put her in his patrol car, and transported her to the Benton County Sheriff's Department. At the Sheriff's Department, the respondent was given a breathalyzer test by Officer James Cihy of the Warsaw Police Department. The test indicated that the respondent had a BAC of .204.
After her arrest, the Director notified the respondent that her driver's license was suspended pursuant to section 302.505. Pursuant to section 302.530, the respondent requested administrative review of her suspension, which was upheld. Subsequently, on May 28, 1999, pursuant to section 302.535.1, the respondent filed a petition for trial de novo in the Circuit Court of Benton County. The Honorable Larry M. Burditt heard the petition on August 5, 1999. At the close of all of the evidence, the trial court took the respondent's case under advisement.
On November 12, 1999, the trial court entered its judgment reinstating the respondent's license, finding that the respondent "did place object in her mouth during the period fifteen minutes immediately prior to taking the test."
This appeal follows.
Standard of Review
Our review of the trial court's judgment reinstating the license of the respondent, after it had been suspended under section 302.505.1 for driving with a BAC of .10% or more, is the same as in any other judge-tried case and is governed by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). Endsley v. Dir. of Revenue, 6 S.W.3d 153, 157 (Mo. App. 1999). "As such, we must affirm the judgment 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." Id.
I.
In his sole point on appeal, the Director claims that the trial court erred in reinstating the respondent's driver's license because he made a prima facie case for suspension under section 302.505.1, which was not rebutted by the respondent. We agree.
Section 302.505.1 provides, in pertinent part:
The department shall suspend or revoke the license of any person upon its determination that the person was arrested upon probable cause to believe such person was driving a motor vehicle while the alcohol
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