Buckley v. Director of Revenue, 63369
| Decision Date | 02 November 1993 |
| Docket Number | No. 63369,63369 |
| Citation | 864 S.W.2d 394 |
| Parties | Patricia Kay BUCKLEY, Petitioner-Appellant, v. DIRECTOR OF REVENUE, State of Missouri, Respondent-Respondent. |
| Court | Missouri Court of Appeals |
Huck, Kasten & Smith, St. Louis, for petitioner-appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., James A. Chenualt, III, Sp. Asst. Atty. Gen., Mo. Dept. of Revenue, Jefferson City, for respondent-respondent.
Petitioner, Patricia Kay Buckley, appeals from the judgment of the trial court denying her petition for a trial de novo and sustaining the order of the Director of Revenue which suspended petitioner's driving privileges for one year for driving while intoxicated. We reverse and remand with directions.
On August 29, 1992, at about 12:10 a.m., a police officer of the Village of St. George, St. Louis County, Missouri, saw petitioner's vehicle travelling westbound on Reavis Barracks Road, which is four lanes wide. The officer saw petitioner's vehicle pass his patrol car and straddle the white lane markers between the curb lane and the passing lane, before entering the curb lane without signalling. The officer followed her for over one and one-half miles and did not notice further erratic driving. When he stopped her, he issued her a ticket for "weaving/lane straddling." At the time of the stop, he noticed that her eyes were bloodshot and glassy, that she smelled of alcohol, and that she swayed when she walked. He administered field sobriety tests, some of which she failed. The officer then arrested her for driving while intoxicated. A subsequent breath analysis test revealed that she had a blood alcohol concentration of .157 percent.
Petitioner's driving privileges were revoked and the revocation was upheld after an administrative hearing. Petitioner petitioned the circuit court for a trial de novo. The trial court denied the petition and sustained the order of the Director of Revenue (Director) suspending petitioner's driving privileges for one year.
In a license suspension proceeding, Director has the burden of proving, by a preponderance of the evidence, (1) that the police officer had probable cause to arrest petitioner for driving while intoxicated and (2) that at the time of the arrest her blood alcohol concentration was .10 percent or greater. See § 302.505, RSMo (Cum.Supp.1992). The circuit court conducts a de novo review of Director's decision. The judgment of the trial court will be affirmed unless there is no substantial evidence to support it, unless it is against the weight of the evidence, or unless the trial court erroneously declared or applied the law. Kimber v. Director of Revenue, 817 S.W.2d 627, 630 (Mo.App.1991).
Petitioner's two points on appeal are that Director established neither probable cause for her arrest nor the percentage of alcohol concentration in her blood. If Director does not prove one of the requisite facts, he fails to meet his burden of proof.
In her second point, petitioner claims the trial court erred in receiving the results of the breath analysis test into evidence. At trial, Director filed documents with the court that included the maintenance check report, which is the report of the monthly maintenance performed on each breath analysis machine. The copy of the maintenance report was certified by the custodian of records of the Department of Revenue and was provided to counsel seven days prior to the hearing in accordance with § 490.692.2, RSMo (Cum.Supp.1992). During the hearing, Director discovered that the maintenance test report submitted to the court was performed on a machine which was not the machine used to determine petitioner's blood alcohol concentration; and then Director offered into evidence the maintenance report for the machine actually used in the test. On appeal, petitioner claims that the trial court erred in overruling her objection to the...
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