Andersen v. Director of Revenue, State of Mo., WD
| Decision Date | 11 March 1997 |
| Docket Number | No. WD,WD |
| Citation | 944 S.W.2d 222 |
| Parties | Dale Ray ANDERSEN, Respondent, v. DIRECTOR OF REVENUE, STATE OF MISSOURI, Appellant. 52042. |
| Court | Missouri Court of Appeals |
Jeremiah W. (Jay) Nixon, Atty. Gen., James A. Chenault, III, Special Assistant Attorney General, Missouri Department of Revenue, Jefferson City, for appellant.
Jay Benson, Kirksville, for respondent.
The circuit court ruled that the director of the Department of Revenue did not meet her burden of proving that Dale Ray Andersen was driving while intoxicated because the director did not convince the court that Andersen's blood alcohol concentration (BAC) was .10 percent when he was driving his pickup. A breath test administered nearly an hour after Andersen was arrested indicated that his BAC was .10 percent, but Andersen submitted to the court that he had "chugged" down a bottle of beer briefly before an officer stopped his pickup and that his BAC was rising when the officer gave him the breath test. The circuit court indicated that because the director did not establish the rate at which Andersen's BAC rose after "chugging" the beer, she failed to meet her burden of showing that Andersen's BAC was at least .10 percent when he was driving.
The director appeals. Because the circuit court required the director to prove more than she was obligated to prove, we remand for a new trial.
A Kirksville police officer stopped Andersen's pickup at 1:27 A.M. on June 16, 1995, when the officer saw the pickup's left tires cross a street's center line. The officer smelled "a moderate odor of beer" when he talked to Andersen, and Andersen admitted to the officer that he had drunk "about three beers." After administering sobriety tests, the officer believed he had probable cause to arrest Andersen for driving while intoxicated.
The officer took Andersen to police headquarters. After watching Andersen for the requisite 15 minutes, the officer administered a breath test at 2:23 A.M., about 56 minutes after the initial stop. The test indicated that Andersen's BAC was .10 percent. Andersen told the officer that he quit drinking beer at 12:30 A.M., two hours before the test, and that he had drunk "four beers."
At trial, Andersen testified that he drank a fourth bottle of beer at about 1:00 A.M., the bar's closing time, and that he "just chugged [it] down." He said that he had begun drinking beer at 10:30 P.M. He testified that he felt more intoxicated at 2:23 A.M. than he did at 1:27 A.M. when the officer stopped his truck.
The circuit court concluded that the director...
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...only rebut with a "preponderance of the evidence" showing that his blood alcohol content was less than .10%. Andersen v. Director of Revenue, 944 S.W.2d 222, 224 (Mo.App.1997). Based on this preponderance standard, the director cites several recent cases in which an expert's testimony that ......
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