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Riggin v. Director of Revenue8/29/2000
Appeal From: Circuit Court of Jasper County, Hon. Richard D. Copeland
Opinion Vote: REVERSED AND REMANDED WITH DIRECTIONS.
Crow, J. and Garrison, J., concur.
Opinion:
The Director of Revenue ("Director") appeals from a judgment entered by the Circuit Court of Jasper County reinstating the driving privileges of Respondent Paul Riggin ("Driver") after a bench trial on Driver's petition for trial de novo, filed pursuant to section 302.535.
Review of the trial court's judgment is pursuant to Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). See Hackmann v. Director of Revenue, 991 S.W.2d 751, 752 (Mo.App. 1999). We must affirm the trial court's judgment if it has substantial evidentiary support, it is not against the weight of the evidence, and does not erroneously declare or apply the law. McDaniel v. Lohman, 989 S.W.2d 688, 689 (Mo.App. 1999).
In his sole point of trial court error, Director contends that in reinstating the driving privileges of Driver, the trial court misinterpreted and misapplied the law because its decision was against the weight of the evidence in that the arresting officer had probable cause to arrest Driver for driving while intoxicated and Driver's blood alcohol content was at least .10% by weight.
At trial, Director presented no live witnesses. Instead, Director offered three exhibits, A, B and C, each certified by the Custodian of Records of the Driver's License Bureau, Missouri Department of Revenue. Driver's attorney objected to Exhibit A and Exhibit B on the basis that "we do not have right to confront --." No objection was made as to Exhibit C. The trial court received all three exhibits into evidence, together with Exhibit D, the "DWI ordinance of Joplin," to which there was no objection. Also, without objection, at Director's request the trial court took judicial notice of 11 CSR 75 (setting out training procedures for police officers) and 19 CSR 25-30 (governing the use of breath analysis instruments). Driver did not testify; nor did he present any other evidence.
In his brief, Driver counters Director's argument by asserting that since the trial court gave no reason for its judgment reinstating the driving privileges of Driver, it must have determined, on further reflection, that there was no properly admitted evidence before it from which it could have ruled in favor of Director. Driver contends that the admissions of Exhibits A, B and C were governed by the provisions of sections 490.660-690, RSMo 1994 ("The Uniform Business Records as Evidence Law"), and 490.692, RSMo 1994, and that Director had not laid the appropriate foundation for their receipt into evidence. Furthermore, Driver asserts that Officer Collard had no probable cause to arrest Driver on the evening in question and, therefore, Director could not make his statutory case for revocation of Driver's driving privileges.
"In reviewing a revocation or suspension under section 302.505 the trial court must determine the following: (1) whether the driver was arrested upon probable cause for violating an alcohol-related offense; and (2) whether the driver had been driving with a blood alcohol content of at least .10% by weight." McDaniel, 989 S.W.2d at 689. "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." Guccione v. Director of Revenue, 988 S.W.2d 649, 652 (Mo.App. 1999). Section 302.535 does not require that the Director produce live witnesses in proving his case. See McDaniel, 989 S.W.2d at 691 (relating to evidence submitted under sections 490.660-690, RSMo 1994; 490.692, RSMo 1994); Tebow v. Direct
Page 1 2 Missouri DUI Attorneys
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