Cannon v. Director of Revenue, State of Mo., 65776
| Decision Date | 21 March 1995 |
| Docket Number | No. 65776,65776 |
| Citation | 895 S.W.2d 302 |
| Parties | Sally Ann CANNON, Petitioner/Appellant, v. DIRECTOR OF REVENUE, STATE OF MISSOURI, Respondent/Respondent. |
| Court | Missouri Court of Appeals |
Frank Carretero, Leonard P. Cervantes, St. Louis, for appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., James A. Chenault, III, Sp. Asst. Atty. Gen., Mo. Dept. of Revenue, Jefferson City, for respondent.
Sally Ann Cannon ("Petitioner") appeals the circuit court's judgment following a trial de novo sustaining the Director of Revenue's ("Director") suspension of Petitioner's driving privileges for driving while intoxicated. We affirm.
Petitioner was observed following another vehicle too closely on Manchester Road at approximately 12:58 a.m. on the morning of April 3, 1992. She was stopped by Officer Robert Petersen who detected a strong odor of intoxicants on her breath and noted that her coordination was highly impaired. Petitioner informed Officer Petersen that she had consumed two glasses of wine prior to being stopped. Petitioner was given field sobriety tests, which she failed. At 1:06 a.m., Petitioner was arrested and transported to the Glendale Police Department.
Petitioner consented to a breath analysis test at 1:16 a.m. The test was performed by Operator P. Chee utilizing an Intoximeter 3000. On the Blood Alcohol Test Report completed by Chee, he certified that he was authorized to operate the instrument, indicated his permit number, and stated that there was no deviation from any of the procedures approved by the Department of Health. A printout of the chemical test results attached to the report indicated that the test was administered at 1:35 a.m., and that Petitioner's blood alcohol content was .286%.
Petitioner's driving privileges were suspended by the Director and the suspension was upheld after an administrative hearing. Petitioner then filed a petition for a trial de novo in the circuit court pursuant to § 302.535 RSMo 1986. 1
At the February 9, 1994 hearing on the petition, Director's attorney informed the court that both the arresting officer and the breathalyzer machine operator were on "indeterminate" injury leave and that she wished to submit her case on the record. To that end, Director offered into evidence as business records the chemical test result printout, the maintenance report of the breathalyzer machine, and the reports of the arresting officer and the chemical test operator. These documents were accompanied by the notarized affidavits of the custodian of records of the Glendale Police Department and the custodian of records of the Department of Revenue--DWI Division, which identified the documents and described their preparation and maintenance. Director also submitted a certified copy of the City of Glendale ordinance prohibiting driving while intoxicated.
The foregoing records were received into evidence over Petitioner's objections. Petitioner offered no testimony or other evidence of her own to contradict the information contained within the records. At the conclusion of the hearing, the trial court found that Petitioner was arrested upon probable cause to believe that she was operating a motor vehicle while intoxicated and that at the time of the stop Petitioner had a blood alcohol concentration by weight of .10 or more. Accordingly, the Director's order suspending Petitioner's driving privileges was sustained. This appeal followed.
The circuit court's judgment is reviewed according to the standards prescribed by Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). The judgment will be affirmed unless there is no substantial evidence to support it, unless the decision is contrary to the weight of the evidence, or unless the court erroneously declares or misapplies the law. Kimber v. Director of Revenue, 817 S.W.2d 627, 629 (Mo.App.1991).
On appeal, Petitioner first contends the trial court erred in admitting the maintenance report of the breathalyzer machine, the chemical test printout, and the reports of the arresting officer and the chemical test operator into evidence because direct testimony was needed to establish a proper foundation for their admission. In support of this argument, Petitioner cites Hadlock v. Director of Revenue, 860 S.W.2d 335 (Mo. banc 1993), which held that, notwithstanding certification by the proper custodian, documents from the Director's files were inadmissible as evidence without additional testimony establishing a proper foundation for their admission.
Petitioner's reliance on Hadlock in the present case, however, is misplaced. In Hadlock, Director sought admission of similar documents into evidence pursuant to § 302.312 RSMo Supp.1992, as copies of documents lawfully filed with the Department of Revenue and certified by the custodian of records. The court analyzed the language of that statute and held that it simply alleviated the need for the original documents which would otherwise be required under the best evidence rule. Id. at 338. It stated that the statute left the copies subject to the same foundation objections as would be their originals: relevancy, authentication and hearsay. Id. at 337. Thus, because no additional foundational testimony was offered by the Director, the documents were not properly admitted.
In the present case, however, Director did not rely upon § 302.312, but rather sought admission of the records pursuant to § 490.680 and § 490.692 RSMo Cum.Supp.1993. 2 Section 490.680 provides:
A record of an act, condition or event, shall, insofar as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business, at or near the time of the act, condition or event, and if, in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission. (Emphasis added).
Thus, § 490.680 is a statutory exception to the hearsay rule and, upon qualification, allows admission of business records for the truth of the matter asserted. See Spies v. Director of Revenue, 854 S.W.2d 66, 67 (Mo.App.1993).
Petitioner is correct in asserting that § 490.680 requires the establishment of a "foundation" consisting of testimony by the custodian of the records or "other qualified witness" as to the identity of the records and as to other factors designed to show the reliability of the records. Goodloe v. Director of Revenue, 838 S.W.2d 506, 508 (Mo.App.1992). However, § 490.692 expands upon this requirement and permits the requisite foundation to be laid by affidavit rather than direct testimony. This section provides:
1. Any records or reproduced copies of records that would be admissible under sections 490.660 to 490.690, shall be admissible as a business record, subject to other substantive or procedural objections, in any court in this state upon the affidavit of the person who would otherwise provide the prerequisites of sections 490.660 to 490.690, that the records attached to the affidavit were kept as required by section 490.680. (Emphasis added).
2. No party shall be permitted to offer such business records into evidence pursuant to this section unless all other parties to the action have been served with copies of such records and such affidavit at least seven days prior to the day upon which trial of the cause commences. 3
Thus, § 490.692 provides a practical way to avoid the necessity of a personal appearance by a records custodian, as mandated by § 490.680. Goodloe, 838 S.W.2d at 509. Upon compliance with both sections, business records may be admitted into evidence without any additional direct testimony.
In the present case, the affidavits of the custodians of records of the Glendale Police Department and the Department of Revenue were submitted in lieu of direct testimony to establish the requisite foundation. This was permissible under the above-referenced statutes. Although Petitioner alleged certain defects may have existed in the underlying testing procedures, she made no objection to the sufficiency of the information contained within the affidavits themselves establishing the documents as business records. Thus, the circuit court correctly applied the law in holding that no further direct testimony was needed and in finding that Director had laid a proper foundation for the admittance of the records into evidence.
Similarly, the court did not err in admitting into evidence without...
To continue reading
Request your trial
-
Endsley v. Director of Revenue
...to explain discrepancies." Id. (citing Smith v. Director of Revenue, 948 S.W.2d 219, 222 (Mo. App. 1997); Cannon v. Director of Revenue, 895 S.W.2d 302, 306 (Mo. App. 1995)). The director in the case before us did just that by having the police officer explain that he tested the temperature......
-
State v. Todd
...Thus, § 490.692 provides a way to admit records into evidence without any additional direct testimony. See Cannon v. Director of Revenue, 895 S.W.2d 302, 304-05 (Mo.App. E.D.1995). This court notes that the affidavit attached to defendant's blood test result was signed by the custodian of r......
-
Brinker v. Dir. of Revenue
...poses a risk of the inability to explain discrepancies or other matters in the record. See, e.g., Cannon v. Dir. of Revenue, State of Missouri, 895 S.W.2d 302, 306 (Mo.App. E.D.1995); Richardson v. Dir. of Revenue, 165 S.W.3d 236, 240 (Mo.App. S.D.2005); Jarrell v. Dir. of Revenue, 41 S.W.3......
-
McDaniel v. Lohman, 22451
...provisions of section 302.505); see also Thebeau v. Director of Revenue, 945 S.W.2d 674, 675-76 (Mo.App.1997); Cannon v. Director of Revenue, 895 S.W.2d 302, 305-06 (Mo.App.1995). Here, with the exception of an objection relating to the notarization of the arresting officer's verified repor......