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Kobayshi v. Director Of Revenue7/18/2000
, 876 (Mo.App. E.D. 1999). We apply the version of 19 CSR 25-30 in effect on May 3, 1999, the date of the trial de novo. Blechle v. Director of Revenue, 1999 WL 1054932 (Mo.App. E.D. 1999).
It is undisputed that the test was performed following the approved methods and techniques of the Department of Health by a person holding a valid permit. The only question is whether the test was performed on equipment and devices approved by the Department of Health. Specifically, Kobayshi argues that the Director failed to show that the standard simulator solution that was used to calibrate the breath analyzer was from an approved supplier, as required by 19 CSR 25-30.051.
Officer George Jefferson, who performed the maintenance test on November 24, 1997, testified on direct examination that the solution he used came from RepCo Marketing, Inc. (hereinafter "RepCo"), an approved supplier. He further testified that the certificate of analysis, the label on the box containing the bottles of solution, and the labels on the bottles of solution all indicated that the solution came from RepCo.
On cross-examination, Officer Jefferson testified that a) the certificate of analysis indicated that samples of the solution had been analyzed by an independent laboratory; and b) nowhere on the certificate of analysis did it read that RepCo was the supplier of the solutions. Therefore, even though it is undisputed that the certificate of analysis was on a RepCo form, Kobayshi argues that this fails to prove that RepCo was the supplier of the solution as required by 19 CSR 25-30.051.
19 CSR 25-30.051 requires the officer who performs the maintenance check to use a solution from an approved supplier; it does not require a certificate of analysis to be attached to the maintenance report. Harper v. Director of Revenue, 1999 WL 363484 (Mo.App. E.D. 1999). Here, Officer Jefferson testified that the solution he used to calibrate the machine came from RepCo, an approved supplier. The regulation does not prohibit approved suppliers from using independent laboratories to analyze samples of the solution. The absence of a listing on the certificate of analysis of RepCo as the supplier of the solution does not negate Officer Jefferson's testimony that the solution came from RepCo. The Director carried his burden of proving that the solution used to calibrate the machine came from an approved supplier. Kobayshi offered no evidence to refute this.
The Director also made a prima facie case that Kobayshi's blood alcohol content was at least 0.10%. According to Guccione, supra, the burden then shifts to Kobayshi to rebut the prima facie case by a preponderance of the evidence. Kobayshi offered no evidence to rebut the Director's prima facie case.
The trial court's judgment is against the weight of the evidence and is reversed. Pursuant to Rule 84.14, the Director's suspension of Kobayshi's driving privileges is reinstated.
Page 1 2 Missouri DUI Attorneys
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