Clark v. Director of Revenue

• Decision Date: 22 April 2004
• Docket Number: No. 25732.,25732.
• Citation: 132 S.W.3d 272
• Parties: Sullivan CLARK, III, Respondent, v. DIRECTOR OF REVENUE, Appellant.
• Court: Missouri Court of Appeals

132 S.W.3d 272

Sullivan CLARK, III, Respondent, v. DIRECTOR OF REVENUE, Appellant.

No. 25732.

Missouri Court of Appeals, Southern District, Division One.

April 22, 2004.

Jeremiah W. (Jay) Nixon, Atty. Gen., and Robert J. (Jeff) Bartholomew, Jefferson City, for Appellant.

Phillip J. Barkett, Jr., Cook, Barkett, Magure & Ponder, L.C., Cape Girardeau, for Respondent.

ROBERT S. BARNEY, Presiding Judge.

Appellant Director of Revenue ("Director") appeals the trial court's judgment setting aside the suspension of the driving privileges of Respondent Sullivan Clark, III ("Driver"). In the sole point on appeal, Director maintains the trial court's judgment was unsupported by substantial evidence and was against the weight of the evidence, in that Director established a prima facie case for suspension of Driver's driving privileges and Driver failed to rebut Director's prima facie case at a bench trial held on Driver's petition for trial de novo pursuant to § 302.535.¹

As reflected in the records submitted by Director at trial, at approximately 11:50 p.m. on July 6, 2001, Driver was involved in a one-vehicle accident. Missouri Highway Patrolman S.R. Rowe ("Trooper Rowe") arrived on the scene of the accident shortly after midnight on July 7, 2001. Trooper Rowe noted the moderate odor of intoxicants on Driver's breath and that Driver's speech was slurred. Trooper Rowe also observed that Driver's eyes were bloodshot and glassy and that his pupils were dilated. Driver told Trooper Rowe that he had "had a couple of beers." Another Missouri Highway Patrolman interviewed two witnesses who stated they observed Driver's vehicle "swerving all over the road" immediately prior to the accident.

Trooper Rowe administered several field sobriety tests. Driver was instructed to repeat the alphabet from C through Q, but Driver recited the entire alphabet. Driver was also asked to count backwards from 90 through 78, which he was unable to do properly. Trooper Rowe performed a Gaze Nystagmus test, which also indicated, in Trooper Rowe's opinion, that Driver was intoxicated. Based on his observations and Driver's performance on the field sobriety tests, Trooper Rowe placed Driver under arrest for Operating a Motor Vehicle While in an Intoxicated Condition and Failure to Wear a Seatbelt.

Driver was taken by ambulance to a hospital in Sikeston, Missouri. After a medical evaluation, Driver consented to a blood test. Trooper Rowe completed a Voluntary Implied Consent Request at 1:20 a.m., which requested that the Missouri Delta Medical Center withdraw blood from Driver for the blood test. Trooper Rowe then witnessed Registered Nurse Melindi Abner collect the blood sample. Trooper Rowe mailed the blood sample via certified mail to the crime laboratory in Willow Springs, Missouri for analysis. The blood sample was received and tested by Criminalist/Chemist Scott Workman ("Workman"), who determined that the ethyl alcohol content of the blood was 0.141 percent.

On October 23, 2001, the Department of Revenue issued a notice to Driver that his driving privileges were suspended pursuant to § 302.505.1.² On November 1, 2001 in the Circuit Court of Mississippi County, Driver filed a Petition for Trial De Novo of the administrative suspension of his driving privileges together with a Motion for the Issuance of a Restricted Driving Privilege.

At the trial de novo Director presented the certified records previously mentioned and the testimony of Workman in proving up her case. Driver did not present any witnesses and limited his case to the cross-examination of Workman.

The trial court entered judgment on June 10, 2003, finding in part that Workman's testimony was "unreliable, and therefore not credible." The court concluded that because the blood alcohol test results in the records submitted by Director were "but derivative of the work and testimony of [Workman], those results must likewise be disregarded." In so finding, the trial court set aside the administrative alcohol suspension of Driver's driving privileges. This appeal followed.

"This Court will affirm the trial court's judgment unless there is no substantial evidence to support it, unless the decision is contrary to the weight of the evidence, or unless the trial court erroneously declares or applies the law." Verdoorn v. Director of Revenue, 119 S.W.3d 543, 545 (Mo. banc 2003).³ We defer to the trial court's determinations regarding credibility. Id. However, when the evidence supporting revocation is "uncontroverted or admitted so that the real issue is a legal one as to the legal effect of the evidence, then there is no need to defer to the trial court's judgment." Id.

Pursuant to section 302.535.1, RSMo 2000, Director had the burden of establishing a prima facie case for suspension of a driver's license by presenting evidence that at the time of the arrest: (1) there was probable cause for arresting Driver for driving under the influence; and (2) that the alcohol concentration in Driver's blood was .10 percent or more. Id. "The `burden of proof' is on the director of revenue to establish grounds for the suspension or revocation by a preponderance of the evidence." Id. (quoting § 302.535.1). When the director makes a prima facie case, the evidence "creates a presumption that the driver was intoxicated." Id. "The driver is then entitled to rebut the director's prima facie case with evidence that his blood alcohol content did not exceed the legal limit." Id. The rebuttal evidence should raise "a genuine issue of fact regarding the validity of the blood alcohol test results" and "should challenge the presumption of validity established by the director's prima facie case...." Id. at 546.

As to the first element of Director's prima facie case, the uncontroverted evidence established that Trooper Rowe had probable cause to believe Driver had been driving while intoxicated. As previously related, Trooper Rowe noticed a moderate odor of intoxicants on Driver's breath, Driver's speech was slurred, Driver's eyes were bloodshot and glassy, and Driver's pupils were dilated. Driver admitted that he had "had a couple of beers." Driver performed three field sobriety tests and, in Trooper Rowe's opinion, Driver failed all three of them. Finally, two witnesses stated they observed Driver's vehicle "swerving all over the road" immediately prior to the accident. We find this evidence was sufficient to support a finding that Trooper Rowe had probable cause to arrest Driver.

We now consider the second element of Director's prima facie case—whether Driver's blood alcohol content ("BAC") was.10 percent or more. Director initially introduced Exhibit A, a copy of the Department of Revenue records including the affidavit of the custodian of records for the Department of Revenue, DWI Division; the complaint and summons; the Alcohol Influence Report; the forensic laboratory report; the accident report; and Driver's "Missouri Driver Record." The Alcohol Influence Report and the forensic laboratory report both identified the test result from the chemical analysis of Driver's blood sample, which indicated a BAC of 0.141 percent.

When using a blood test to prove BAC, the proponent of the test must usually meet all foundational prerequisites for its admission. The required prerequisites are: (1) that the individual who took the blood sample was a licensed physician, registered nurse, or trained medical technician; (2) that a sterile needle was used; (3) that a sterile container was used; and (4) that a non-alcoholic antiseptic was used. § 577.029; see also Francis v. Director of Revenue, 85 S.W.3d 56, 59-60 (Mo.App. 2002); Nesbitt v. Director of Revenue, 982 S.W.2d 783, 784-85 (Mo.App.1998).

At the trial de novo, Director submitted the records as business records pursuant to section 490.692. The statute provides, in pertinent part:

1. Any records or copies of records reproduced in the ordinary course of business ... 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.

§ 490.692 (emphasis added). Director included in the proffered records an affidavit from Doris M. Hooks, the custodian of records for the Missouri Department of Revenue, DWI Division. This certification included the following language: "It is further certified pursuant to Section 302.312 RSMo., that the records attached hereto are exact duplicates of the original records lawfully filed or deposited with the Department of Revenue by the reporting agency or entity pursuant to the provisions of Chapters 302, 303 and/or 577 RSMo."

Furthermore, section 302.312 provides, in pertinent part:

1. Copies of all papers, documents, and records lawfully deposited or filed in the offices of the department of revenue or the bureau of vital records of the department of health and copies of any records, properly certified by the appropriate custodian or the director, shall be admissible as evidence in all courts of this state and in all administrative proceedings.

(Emphasis added.) "The language of Section 302.312 ... is clear and unambiguous. Copies of documents from the department of revenue are admissible as evidence so long as the copies are properly certified." Mills v. Director of Revenue, 964 S.W.2d 873, 875 (Mo.App.1998); see also Riggin v. Director of Revenue, 25 S.W.3d 695, 698 (Mo.App.2000). Accordingly, Director's records included in Exhibit A were properly certified and admissible as an exception to the hearsay rule, see Francis, 85 S.W.3d at 60, and this Court reviews the evidence in this case in light of this statutory mandate.

During direct examination, Director asked Workman what the results were from the tests he conducted. At this point, Driver objected "because there...