Stuart v. Director of Revenue

761 S.W.2d 234, 1988 Mo. App. LEXIS 1633, 1988 WL 125655
CourtMissouri Court of Appeals
DecidedNovember 28, 1988
DocketNo. 15349
StatusPublished
Cited by6 cases

This text of 761 S.W.2d 234 (Stuart v. Director of Revenue) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Stuart v. Director of Revenue, 761 S.W.2d 234, 1988 Mo. App. LEXIS 1633, 1988 WL 125655 (Mo. Ct. App. 1988).

Opinion

HOLSTEIN, Chief Judge.

The Director of Revenue of the State of Missouri (Director) appeals a judgment of the Circuit Court of Phelps County entered in an action filed by Teddy D. Stuart seeking de novo review of an administrative suspension of Stuart’s driving privileges. §§ 302.500-540.1

The only point on appeal is that the court erroneously found that the Director had failed to meet his burden of proving that Stuart operated a motor vehicle on February 8,1987, with a blood alcohol level equal to or greater than thirteen-hundredths of one percent by weight. Stuart has not filed any brief on appeal.

In determining whether the Director has met his burden of proof, our standard of review is that followed in other court-tried cases. See Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); Bradford v. Director of Revenue, 735 S.W.2d 208, 209 (Mo.App.1987). If the parties do not request findings of fact and the court makes no finding on a specific issue, we assume that such determination of fact was made consistent with the judgment entered by the trial court. Scott v. Director of Revenue, 755 S.W.2d 751, 752 (Mo.App.1988). In reviewing the evidence in a court-tried case, we disregard incompetent evidence and consider admissible evidence which [236]*236was rejected by the trial court. Menos v. Hodges, 499 S.W.2d 427, 429 (Mo.1973); Smead v. Allen, 581 S.W.2d 93, 94 (Mo.App.1979); Rule 73.01(c)(3).

The factual questions for determination in this proceeding for de novo review of an administrative suspension or revocation of a driver’s license are (1) whether Stuart was driving, (2) whether Stuart was arrested upon probable cause that he committed an alcohol-related traffic offense, and (3) whether, at the time Stuart was driving, he had an alcohol concentration in his blood or breath of thirteen-hundredths of one percent or more by weight. §§ 302.505(1) and 302.530(4).

On February 8, 1987, at 1:36 a.m., officer David Pikka of the Rolla Police Department was on duty and operating his patrol vehicle on Highway 63 in the city of Rolla. Pikka observed a 1975 Ford van sitting in a left-turn lane ahead of him. He pulled in behind the van. The van sat for an “abnormal amount of time since there was no traffic,” and then turned left. Pik-ka followed the van some distance to the east on Kingshighway. The van then turned right making a wide turn crossing into the oncoming lane of traffic. The van proceeded some distance to another intersection where it again stopped. Although there was no traffic, the van remained stopped. Pikka, still behind the van, waited for it to move. When it did not move after a period of time, he sounded his horn. After crossing the intersection, Pikka directed the van to stop.

The only occupant of the van was Stuart. Pikka exited his vehicle, approached Stuart, and noticed the smell of intoxicants and that Stuart’s speech was slurred. Pikka asked Stuart to perform three field sobriety tests. Stuart was unable to say the alphabet, was unable to touch either index finger to his nose, and staggered when asked to walk heel to toe. Pikka was of the opinion that Stuart was intoxicated. He arrested Stuart, took him to the police station, and observed him at all times from the time he was arrested until Stuart blew into the machine used to analyze breath for presence of alcohol.

The foregoing evidence was uncon-tradicted and clearly demonstrates that Stuart was driving the vehicle and that probable cause existed for his arrest for an alcohol-related traffic offense. If a police officer observes a traffic violation or unusual operation of a motor vehicle, and upon stopping the motorist there are specific indications of alcohol consumption noted, sufficient probable cause to make an arrest for an alcohol-related traffic violation exists. Aron v. Director of Revenue, 737 S.W.2d 718, 719 (Mo. banc 1987). The first two factual issues were established in favor of the Director. The only remaining factual question is whether Stuart’s blood alcohol concentration was thirteen-hundredths of one percent or greater by weight.

Police Officer Cody Fulkerson of the Rol-la Police Department testified that he administered the breathalyzer test to Stuart at 2:04 a.m. on February 8, 1987. Fulker-son is the holder of a Type III permit authorizing him to operate a machine identified as a “BAC Verifier.” See 13 Mo.Admin.Code 50-140.040(5). According to Fulkerson, he went through each of the required steps in using the BAC Verifier. 13 Mo.Admin.Code 50-140.060(13). Fulker-son found the machine to be functioning in a normal manner. The breath test conducted on Stuart resulted in a machine printout reading of 0.208% alcohol concentration. However, the trial court sustained an objection by Stuart’s attorney to the machine’s printout containing the alcohol concentration reading. The basis of the objection was that the machine was not properly functioning at the time the test was given.

The background of Stuart’s attorney’s objection is found in the cross-examination of Officer Pikka. Since May of 1986, when he received his training, Pikka has held a Type II-R permit on the BAC Verifier. Part of Pikka’s duties are to care for and maintain the machine in question.

In the course of his duties, Pikka performed a maintenance check in January of 1987 which included a diagnostic check showing that the “sample chamber” of the machine had a set temperature of 50° C [237]*237and an actual temperature of 53° C. A similar diagnostic check performed on February 25, 1987, disclosed that the sample chamber was set at 50° C and that the actual temperature was 53° C. In performing both checks, Pikka found each operation of the machine to be “satisfactory [and] ... within established limits.”

During Pikka’s cross-examination he was asked if he used a manual titled, “The BAC Verifier.” He stated that he used the manual in performing his duties. Pikka also testified that he was given the manual by the Missouri State Highway Patrol at the time he obtained his training on the machine in 1986, with the exception of a supplemental page discussed infra. Without further foundation than that already mentioned, Stuart’s attorney offered the entire manual, except the supplemental page, into evidence.

The manual consists of several tabbed sections. The first section of the manual is for use by operators. Other tabbed sections of the manual are apparently intended for use by supervisory and maintenance personnel who are presumably Type II per-mittees such as Pikka.

Although the Director objected, the trial court was apparently persuaded that the manual was admissible in evidence. The court admitted the manual except for the supplemental page following page 14 under the tab designated, “Operator Manual.” Page 14 of the “Operator Manual,” in pertinent portion, states as follows:

BAC VERIFIER

INTERNAL DIAGNOSTIC TEST

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Related

State v. Allen
274 S.W.3d 514 (Missouri Court of Appeals, 2008)
Blazier v. Vincent
204 S.W.3d 658 (Missouri Court of Appeals, 2006)
McCarthy v. Director of Revenue
120 S.W.3d 760 (Missouri Court of Appeals, 2003)
Bradford v. Director of Revenue
72 S.W.3d 611 (Missouri Court of Appeals, 2002)
Jackson ex rel. Jackson v. Jackson
875 S.W.2d 590 (Missouri Court of Appeals, 1994)
State v. Reichert
854 S.W.2d 584 (Missouri Court of Appeals, 1993)

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Bluebook (online)
761 S.W.2d 234, 1988 Mo. App. LEXIS 1633, 1988 WL 125655, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stuart-v-director-of-revenue-moctapp-1988.