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Ballard v. Director of Revenue9/12/2000
Jimmy D. Ballard appeals from the judgment of the circuit court affirming the decision of the Director of Revenue (Director) suspending his operator's license, pursuant to section 302.505.1, for driving a motor vehicle with a blood alcohol concentration (BAC) of .10% or more by weight.
The appellant raises one point on appeal. He claims that the trial court erred in affirming the administrative suspension of his license because in doing so the court erroneously declared and applied section 302.505.1 in that pursuant to this section, in order to make a prima facie case for suspending his license, the Director was required, but failed, to establish that as an under-21 driver the appellant was stopped upon probable cause to believe that he was driving while intoxicated (DWI), in violation of section 577.010; with an excessive BAC, in violation of section 577.012; or upon probable cause to believe that he had committed a state, county, or municipal traffic offense with a BAC of .02% or more.
We reverse and remand.
Facts
On May 31, 1998, at approximately 1:52 a.m., James R. Burks, a police officer for the City of Albany, Gentry County, Missouri, was exiting the police station when he heard the sound of tires squealing just a block away. Officer Burks observed a red Ford pickup truck, being driven by the appellant, leaving the intersection of Clay and Smith Streets, the direction from which the sound of squealing tires had come. The red pickup was followed by a green and yellow Chevy pickup. As the green and yellow pickup traveled by his location, Officer Burks stopped it and asked the occupants who had been squealing tires. The occupants identified the appellant as the responsible person. Officer Burks then pursued the appellant's vehicle.
Within the next five to ten minutes, Officer Burks located appellant's vehicle sitting double-parked on the west side of the square. After driving around the square, Officer Burks pulled up behind the appellant's vehicle, at which point the appellant began driving toward the east side of the square. Officer Burks then activated his patrol vehicle's lights and stopped the appellant's vehicle. Officer Burks informed him that he had been stopped for squealing his tires at the intersection. At this time, Officer Burks noticed an odor of intoxicants coming from the appellant and proceeded to conduct a field sobriety test. Based upon appellant's failure of the field sobriety test, Officer Burks determined that appellant was intoxicated. He placed him under arrest for violating the Albany city ordinance for DWI.
After arresting the appellant, Officer Burks transported him to the police station, where he performed a breathalyzer test, which showed the appellant's BAC to be .135%. The appellant was under twenty-one years of age at the time of his arrest.
Following his arrest, the Director notified the appellant that his driver's license was suspended pursuant to section 302.505. As a result, the appellant filed a petition for administrative review of his suspension, on which a hearing was held on August 27, 1998. After hearing evidence, the hearing officer rejected the appellant's contention that, in order to make a prima facie case for suspension under section 302.505.1, the Director had the burden to prove probable cause to stop due to the fact that the appellant was under 21 years of age at the time of his arrest. Instead, the hearing officer found that because the appellant had a BAC of .10% or more, the Director only had to show that there was probable cause to arrest. Finding that the Director had made a prima facie case, based on this interpretation of the statute, and that the appellan
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