Devereux v. Director of Revenue

990 S.W.2d 658, 1999 Mo. App. LEXIS 347, 1999 WL 179008
Missouri Court of Appeals·Decided March 23, 1999·No. No. 74298·Published·Cited by 1 cases

Opinion

GARY M. GAERTNER, Judge.

Appellant, Director of Revenue (“Director”), appeals the judgment of the Circuit Court of St. Louis County reinstating the driving privilege of respondent, Eleanor M. Devereux (“driver”), after a trial de novo pursuant to RSMo section 302.535 (Cmn.Supp.1998). We reverse and remand.

[660]*660On August 22, 1997, a Town and Country police officer stopped driver’s vehicle for failing to stop at a stop sign. After approaching driver, the officer smelled an odor of an alcoholic nature on her breath and noticed her eyes were watery and bloodshot. Driver admitted she had been drinking. The officer then asked driver to perform several field sobriety tests, the results of which indicated driver was intoxicated.

The officer arrested driver for driving while intoxicated and took her to the police station where she consented to a breath test. The test result showed driver had a blood alcohol concentration of .112%. Subsequently, Director suspended driver’s driving privilege pursuant to RSMo section 302.505 (Cum.Supp.1998), for driving with a blood alcohol concentration of at least .10%.

Thereafter, driver filed a petition for a trial de novo in the St. Louis County Circuit Court. At trial, Director moved for the admission of Exhibit D, which contained a maintenance report dated August 8, 1997 and included printouts that accompanied the maintenance report, as well as a copy of a RepCo Marketing certificate of analysis on Lot No. 96004 with the language, “Corrected 01/20/97,” at the top. Driver objected to the introduction of those documents and the trial court granted driver time in which to file a memorandum of law, including her objections to the introduction of those documents. The trial court also granted Director time to respond to driver’s memorandum. Also at trial, driver introduced several other certificates of analysis on Lot No. 96004 from RepCo Marketing.1 Driver’s objections in her memorandum were based on the following grounds: (1) an alleged lack of probable cause for driver’s arrest, (2) the certificate of analysis allegedly contained hearsay, double hearsay, and triple hearsay, and (3) the multiple certificates of analysis introduced by driver.

After the trial de novo and reviewing the parties’ post-trial memoranda and exhibits, the trial court found probable cause for-driver’s arrest, but sustained driver’s objections to the certificate of analysis and set aside the suspension. Director appeals.

The court’s judgment will be affirmed 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. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.banc 1976). To uphold the suspension of driver’s driving privilege, Director had the burden of proving by a preponderance of the evidence that the arresting officer had probable cause for the arrest and further, that driver was driving when his blood alcohol concentration was .10% or more by weight. Rogers v. Director of Revenue, 947 S.W.2d 475, 476-77 (Mo.App. E.D.1997). When Director makes a prima facie showing of its burden, then the burden shifts to driver to prove by a preponderance of the evidence that his blood alcohol concentration was not .10% or more at the time he was driving. Green v. Director of Revenue, 961 S.W.2d 936, 938 (Mo.App. E.D.1998).

In her points relied on, Director argues the trial court erred in rejecting the certificate of analysis for the simulator solution used to calibrate the breath analyzer and finding driver did not have a blood alcohol concentration of at least .10% because the certificate of analysis and maintenance report were valid under 19 CSR 25-30.051(4). Director further argues the trial court erred in setting aside the suspension or revocation of driver’s driving privilege because its decision was against the weight of the evidence. We agree with Director.

[661]*661To lay a proper foundation for the admission of breath test results, Director had to demonstrate the breath test was performed: (1) by following the approved methods and techniques of the division of health; (2) by a person holding a valid permit; and (3) on equipment and devices approved by the division. Rogers, 947 S.W.2d at 477. At issue in this case is whether the trial court erred in rejecting the certificate of analysis, thus finding Director failed to prove driver had a blood alcohol concentration of at least .10%.

Nineteen CSR 25-30.051, which addressed certificates of analysis and applied for the standard simulator solutions to be used in verifying and calibrating breath analyzers, became effective on September 1, 1997, which was after driver’s arrest but before her trial. Regulations regarding procedural rules apply retrospectively and thus, we review under this revised regulation. Tate v. Director of Revenue, at 726-27 (Mo.App.E.D. 1998) (citing Vilcek v. Director of Revenue, 974 S.W.2d 602, 604 (Mo.App. E.D.1998); Mullins v. Director of Revenue, 946 S.W.2d 770, 772 (Mo.App. E.D.1997)).

At that time, this regulation provided in pertinent part:

(l)Standard simulator solutions, used to verify and calibrate evidential breath analyzers at the 0.10% or 0.100% level, shall be certified by the suppliers of that solution to have an ethanol, in aqueous solution, concentration of 0.1210 g/dl + 3% (wt./vol.). This solution shall produce a vapor alcohol value of 0.100% + 3% when heated to 34 + 0.2 Celsius in a simulator.
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(3)The certificate shall include the name of the supplier, the lot or batch number of solution, the ethanol concentration in aqueous solution, and the expiration date. Evidence of that certification shall accompany the maintenance report in the form of writing on the maintenance report the supplier of the solution, the ethanol in vapor concentration, lot or batch number, and the expiration date. A photocopy of that certificate shall be attached to the maintenance report. (4)Maintenance reports completed on or after March 26, 1996, and prior to the effective date of this rule shall be considered valid under this rule if a certificate of analysis was supplied with the simulator solution. Maintenance reports completed prior to March 26, 1996, shall be considered valid under this rule if done in compliance with the rules in effect at the time the maintenance report was conducted.

Director argues she laid a proper foundation for the admission of the test results because the certificate of analysis and maintenance report were valid under 19 CSR 25-30.051(4). We agree. “In Tate and Trumble2 we found that the technical requirements for maintenance reports and accompanying certificates of analysis set out in subsections (1) through (3) of 19 CSR 25- 30.051 did not apply to maintenance reports completed on or after March 26, 1996, but before September 1, 1997 under subsection (4) of the regulation.” Kafoury v. Director of Revenue,

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Devereux v. Director of Revenue, 990 S.W.2d 658, 1999 Mo. App. LEXIS 347, 1999 WL 179008 (Mo. Ct. App. 1999).

990 S.W.2d 658 (Devereux v. Director of Revenue) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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