Brandom v. Director of Revenue, State of Mo., 20856

• Decision Date: 23 October 1996
• Docket Number: No. 20856,20856
• Citation: 931 S.W.2d 510
• Parties: Mark Richard BRANDOM, Respondent, v. DIRECTOR OF REVENUE, STATE OF MISSOURI, Appellant.
• Court: Missouri Court of Appeals

Page 510

931 S.W.2d 510

Mark Richard BRANDOM, Respondent, v. DIRECTOR OF REVENUE, STATE OF MISSOURI, Appellant.

No. 20856.

Missouri Court of Appeals,

Southern District,

Division One.

Oct. 23, 1996.

Jeremiah W. (Jay) Nixon, Atty. Gen., James A. Chenault, III, Sp. Asst. Atty. Gen., Mo. Dept. of Revenue, Jefferson City, for appellant.

Phillip J. Barkett, Jr., Dempster, Barkett & Edwards, L.L.C., Sikeston, for respondent.

PER CURIAM.

The Director of Revenue (Appellant) appeals from a trial court order setting aside suspension of Respondent's driving privileges. Appellant contends the trial court erred in that evidence sufficient to support a revocation of Respondent's privileges for driving while intoxicated was uncontroverted at trial. We agree and order reinstatement of Appellant's suspension of Respondent's driving privileges.

Respondent had petitioned for and received a trial de novo after Appellant suspended and later sustained the suspension of his driver's license, pursuant to §§ 302.500-.540, RSMo 1994. At trial, a Missouri highway patrolman testified that he stopped Respondent for speeding and, after noticing that Respondent's breath bore a strong odor of intoxicants, his eyes were watery, and his speech was slurred, asked Respondent to perform several field sobriety tests. Respondent failed all but one of these tests, according to the officer's testimony, and the officer arrested Respondent for driving while intoxicated.

The officer testified that the field test Respondent had passed was conducted with a portable breathalyzer. According to the officer, the results of that showed Respondent's blood-alcohol content below .10%. The officer further testified, without objection or contradiction, that he believed the portable breathalyzer to be malfunctioning and that the results of a test conducted minutes later with equipment at a nearby patrol station showed Respondent's blood-alcohol content to be .13%.

A suspension of driving privileges pursuant to § 302.505 requires a two-part showing: (1) that the driver was arrested upon probable cause that he or she was driving in violation of an alcohol-related offense; and (2) that the driver had been driving at a time when his or her blood-alcohol concentration was at least .10% by weight. Fitzgerald v. Director of Revenue, 922 S.W.2d 478, 480 (Mo.App.1996).

Respondent claims that because several documentary exhibits, including the printout of the results of the blood-alcohol content test, were never admitted into evidence, the only evidence preserved for review by this court is the testimony of the arresting officer, "which was conflicted at best."

However, this testimony was unequivocal and uncontradicted with respect to facts clearly justifying suspension for driving while intoxicated. The officer was allowed to testify, without objection, that Respondent's breathalyzer test showed a blood-alcohol content of .13%. "When evidence of one of the issues in the case is admitted without objection, the party against whom it is offered waives any objection to the evidence, and it may be properly considered even if the evidence would have been excluded upon a proper objection." Reinert v. Director of Revenue, 894 S.W.2d 162, 164 (Mo. banc 1995).

We do not believe the failure to admit the documentary exhibits into evidence prevented Appellant from carrying her burden of proof in establishing the necessary requirements for suspension.

Respondent next points out that Appellant never proved the arresting officer was justified in making the initial stop. Such proof was...