Dillion v. Director of Revenue, WD56123

CourtCourt of Appeal of Missouri (US)
Writing for the CourtPER CURIAM
Citation999 S.W.2d 319
PartiesCary Lee Dillon, Respondent, v. Director of Revenue, State of Missouri, Appellant. WD56123 Missouri Court of Appeals Western District 0
Docket NumberWD56123
Decision Date07 September 1999

Cary Lee Dillon, Respondent,
v.
Director of Revenue, State of Missouri, Appellant.

WD56123

Missouri Court of Appeals Western District

09/07/99

Appeal From: Circuit Court of Miller County, Hon. James A. Granthan

Counsel for Appellant: Evan J. Buchheim

Counsel for Respondent: Timothy R. Cisar

Opinion Summary: The Director of Revenue appeals the judgment of the trial court reinstating Cary Lee Dillon's driving privileges. The Director claims that the trial court's finding that the Director failed to make a prima facie case for suspension of Mr. Dillon's driving privileges is based upon a misapplication of the law and is against the weight of the evidence.

Division IV holds: The trial court erred in holding that the Director failed to make a prima facie case for suspension of Mr. Dillon's driving privileges based upon its finding that Mr. Dillon's breathalyzer test results were inadmissible. Although the police officer who administered the breathalyzer test did not use the Department of Health breathalyzer operational checklist form, the Director presented sufficient evidence demonstrating the officer's substantive compliance with the Department of Health regulations regarding the administration of breathalyzer tests. The breathalyzer test results were thus admissible evidence which, combined with the Director's other evidence, established the Director's prima facie case.

Hanna and Ellis, JJ., concur.

Patricia Breckenridge, Chief Judge


The Director of Revenue appeals the judgment of the trial court reinstating Cary Lee Dillon's driving privileges. The Director claims that the trial court's finding that the Director failed to make a prima facie case for suspension of Mr. Dillon's driving privileges is based upon a misapplication of the law and is against the weight of the evidence. Because this court finds that the Director made a prima facie case for suspension of Mr. Dillon's driving privileges, the trial court's judgment is reversed and the cause is remanded for a new trial.

Factual and Procedural Background

On August 15, 1996, at approximately 12:30 a.m., Officer Danny Pendleton of the Lake Ozark Police Department observed a blue Chevy S-10 pickup traveling at a speed in excess of the posted limit. After following the truck for approximately one-quarter mile with the patrol cruiser lights engaged, the officer observed the truck pull into a Jiffy Stop parking lot. As the driver alighted from the vehicle and began walking toward the store, the officer approached him. The officer asked the man for his driver's license and told him that he had been driving in excess of the speed limit. The man gave the officer his license, which revealed that he was Cary Dillon. According to Officer Pendleton, Mr. Dillon appeared nervous during the stop, and the odor of intoxicating liquor was emanating from his person. Officer Pendleton also observed that Mr. Dillon's speech was "a little slurred."

Officer Pendleton asked Mr. Dillon if he had been drinking and Mr. Dillon responded that he had consumed approximately three beers at Risky's, a local bar and restaurant. Officer Pendleton then asked Mr. Dillon to perform the three field sobriety tests which are standardized on the Missouri Alcohol Influence Report -- the one leg stand, the walk-and-turn and the gaze nystagmus. Officer Pendleton was trained to administer and evaluate all three field sobriety tests. Mr. Dillon failed the gaze nystagmus and the walk-and-turn tests. He did not satisfy two "pointers" of the one leg stand and "barely passed" that test. From his observation of Mr. Dillon, Officer Pendleton concluded that he...

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3 practice notes
  • Pearson v. Koster, Nos. SC 92317
    • United States
    • United States State Supreme Court of Missouri
    • 3 Julio 2012
    ...Flynn v. Flynn, 34 S.W.3d 209, 210–12 (Mo.App. E.D.2000); In re D.L.M., 31 S.W.3d 64, 65 (Mo.App. E.D.2000); Dillon v. Dir. of Revenue, 999 S.W.2d 319, 320 (Mo.App. W.D.1999) (Breckenridge, C.J.); In re M.F., 1 S.W.3d 524, 528 (Mo.App. W.D.1999) (Breckenridge, C.J.); Buschardt v. Jones, 998......
  • Milligan v. Wilson, No. WD 59778.
    • United States
    • Court of Appeal of Missouri (US)
    • 28 Mayo 2002
    ...of proving by a preponderance of the evidence a prima facie case for suspension of a driver's license." Dillon v. Dir. of Revenue, 999 S.W.2d 319, 322 (Mo. App.1999). To make a prima facie case for suspension under § 302.505, the Director must show that: "(1) the licensee was arre......
  • McGuire v. Director of Revenue, No. ED 85882.
    • United States
    • United States State Supreme Court of Missouri
    • 25 Octubre 2005
    ...prove compliance with the regulations regarding maintenance checks through all available Page 90 evidence. Dillon v. Director of Revenue, 999 S.W.2d 319, 323 (Mo.App. In Lasley, the case the trial court relies on, a trial de novo took place. 17 S.W.3d 174 (Mo.App. W.D.2000). During the tria......
5 cases
  • Pearson v. Koster, Nos. SC 92317
    • United States
    • United States State Supreme Court of Missouri
    • 3 Julio 2012
    ...Flynn v. Flynn, 34 S.W.3d 209, 210–12 (Mo.App. E.D.2000); In re D.L.M., 31 S.W.3d 64, 65 (Mo.App. E.D.2000); Dillon v. Dir. of Revenue, 999 S.W.2d 319, 320 (Mo.App. W.D.1999) (Breckenridge, C.J.); In re M.F., 1 S.W.3d 524, 528 (Mo.App. W.D.1999) (Breckenridge, C.J.); Buschardt v. Jones, 998......
  • Pearson v. Koster, No. SC92317
    • United States
    • Missouri Supreme Court
    • 25 Mayo 2012
    ...v. Flynn, 34 S.W.3d 209, 21012 (Mo. App. E.D. 2000); In re D.L.M., 31 S.W.3d 64, 65 (Mo. App. E.D. 2000); Dillon v. Dir. of Revenue, 999 S.W.2d 319, 320 (Mo. App. W.D. 1999) (Breckenridge, C.J.); In re M.F., 1 S.W.3d 524, 528 (Mo. App. W.D. 1999) (Breckenridge, C.J.); Buschardt v. Jones, 99......
  • Potts v. State
    • United States
    • Missouri Court of Appeals
    • 18 Julio 2000
    ...were observed -- have expressly dispensed with the requirement of "absolute compliance." For example, in Dillon v. Director of Revenue, 999 S.W.2d 319, 322-23 (Mo. App. W.D. 1999), Mr. Dillon requested at the circuit court a trial de novo of the Department of Revenue's suspension of his dri......
  • Milligan v. Wilson, No. WD 59778.
    • United States
    • Court of Appeal of Missouri (US)
    • 28 Mayo 2002
    ...burden of proving by a preponderance of the evidence a prima facie case for suspension of a driver's license." Dillon v. Dir. of Revenue, 999 S.W.2d 319, 322 (Mo. App.1999). To make a prima facie case for suspension under § 302.505, the Director must show that: "(1) the licensee was arreste......
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