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Kobayshi v. Director Of Revenue7/18/2000
Appeal From: Circuit Court of the City of St. Louis, Hon. Thad F. Niemira
Opinion Vote: REVERSED. Gaertner, P.J., and Simon, J., concur.
Opinion:
The Director of Revenue (hereinafter "the Director") appeals from a judgment reinstating Shegeki Kobayshi's (hereinafter "Kobayshi") driving privileges. We reverse.
Facts
On December 14, 1997, a City of St. Louis police officer stopped Kobayshi's vehicle for speeding. Based on the officer's observations and Kobayshi's poor performance on several field sobriety tests, the officer arrested Kobayshi for driving while intoxicated. The officer transported Kobayshi to the police station, where Kobayshi consented to a breath test. The test result showed a blood alcohol concentration of 0.210%. The Director suspended Kobayshi's driving privileges under Section 302.505 RSMo Cum. Supp. 1997 for driving with a blood alcohol level of at least 0.10%.
Kobayshi filed a petition for a trial de novo in the Circuit Court of St. Louis City. During the May 3, 1999 trial, the Director offered into evidence Department of Revenue certified records and the testimony of the officer who performed the maintenance on the breath analyzer used for Kobayshi's breath test. Kobayshi objected to the breath test result, the maintenance report, and the certificate of analysis for the simulator solution used to calibrate the breath analyzer. He argued that the certificate of analysis did not comply with the Department of Health regulations and contained double hearsay. The trial court took the objection under submission.
The maintenance officer testified that he used a simulator solution received directly from RepCo Marketing when he performed the maintenance check. He also testified that the breath analyzer was working properly and within the Department of Health's specifications when he performed the maintenance.
The trial court entered a judgment finding that the officer had probable cause to arrest Kobayshi, but that the Director failed to carry its burden of proving Kobayshi's blood alcohol concentration was at least 0.10%. The Director appeals.
Standard of Review
The judgment of the trial court will be affirmed unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Guccione v. Director of Revenue, 988 S.W.2d 649, 652 (Mo.App. E.D. 1999). To establish a prima facie case at trial, the Director has the burden of showing by a preponderance of the evidence that (1) the arresting officer had probable cause to arrest the driver for driving while intoxicated, and (2) at the time of the arrest, the driver's blood alcohol content was 0.10% or greater. Id. When the Director makes a prima facie case, the burden then shifts to the driver to rebut the prima facie case by a preponderance of the evidence. Id.
Because the trial court found that the officer had probable cause to arrest the driver, the only issue for review is whether the Director proved by a preponderance of the evidence that Kobayshi's blood alcohol content was above 0.10% at the time of the arrest. To lay a proper foundation for the admission of the breathalyzer test results, the Director must demonstrate the test was performed: (1) by following the approved methods and techniques of the Department of Health; (2) by a person holding a valid permit; and (3) on equipment and devices approved by the Department of Health. Adkins v. Director of Revenue, 985 S.W.2d 407 (Mo.App. E.D. 1999). These foundation requirements are found in the Code of State Regulations in 19 CSR 25-30. Meurer v. Director of Revenue, 984 S.W.2d 873
Page 1 2 Missouri DUI Attorneys
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