Endsley v. Director of Revenue
| Decision Date | 21 September 1999 |
| Citation | 6 S.W.3d 153 |
| Parties | (Mo.App. W.D. 1999) Brian Edward Endsley, Respondent, v. Director of Revenue, State of Missouri, Appellant. WD56653 0 |
| Court | Missouri Court of Appeals |
Appeal From: Circuit Court of Ray County, Hon. David L. Busch
Counsel for Appellant: James A. Chenault, III
Counsel for Respondent: Farrell D. Hockemeier
Opinion Summary: The Director of Revenue (the Director) appeals from the judgment of the circuit court reinstating the driver's license of the respondent, Brian E. Endsley, after it had been administratively suspended for driving while intoxicated (DWI) pursuant to section 302.505, RSMo Supp. 1996.
In his sole point on appeal, the Director claims that the trial court erred in reinstating the respondent's driver's license because he carried his burden of proof to support the administrative suspension of his license under section 302.505 in that there was sufficient evidence to establish that there was probable cause to arrest the respondent for DWI and that, at the time, his blood alcohol concentration (BAC) was ten-hundredths of one percent or more by weight of alcohol in his blood.
Majority Opinion holds: Under section 302.505, the Director makes a prima facie case for the suspension of a person's driver's license by establishing by a preponderance of the evidence that: (1) there was probable cause to arrest the driver for DWI, and (2) at the time of the arrest, the driver's BAC was at least ten-hundredths of one percent or more by weight. Once the Director has established a prima facie case, the burden shifts to the driver to present evidence to rebut it.
In this case, the evidence was sufficient to establish probable cause for the respondent's arrest for DWI, satisfying the first element of the Director's prima facie case for suspension. As to the second element, at the hearing the Director attempted to establish that the respondent's BAC was equal to or greater than ten-hundredths of one percent by having Officer Bridgeforth, who arrested the respondent, testify as to the result of the breath test given. In giving the breath test, the officer had checked every required item on the maintenance report for the BAC Verifier used to administer the test, except that he failed to mark the report to indicate that he had checked the simulator temperature, which was critical to an accurate alcohol breath test. However, the officer testified at the hearing that he did, in fact, check the simulator temperature. The respondent objected to the admission of the test result due to an insufficient foundation for its admission, which was sustained by the trial court. The respondent was objecting on the basis that the officer had failed to perform every required item on the maintenance report checklist.
As to the issue of whether the maintenance check was done correctly so as to establish a proper foundation for admission of the test result, the Director contends that the trial court was required to believe the officer's testimony that the simulator temperature was checked and, thus, the test result should have been admitted making a prima facie case for suspension. However, where there is inconsistent and contradictory evidence with respect to an underlying fact on which the admission of the test result is based, the trial court is free to believe or disbelieve the evidence it chooses in admitting or excluding the test result.
On the issue of whether there was inconsistent or contradictory evidence sufficient to raise a credibility issue for the trial court, the Director and the dissent contend that there was not. They claim that the mere mechanical failure to complete a required form in the process for BAC testing will not invalidate the test result and prevent its admission to establish the BAC of the driver. In effect, they contend that such evidence does not controvert the officer's testimony that he did check the temperature. However, the Director and the dissent mistakenly assume that the issue in this case is one of form over substance as opposed to a credibility call with respect to inconsistent and contradictory evidence. Whether the trial court believed that the simulator temperature was determined as required is not a case of elevating form over substance. As such, we find that the conflicting or contradictory evidence in this case comes from the fact that the officer failed to physically check the box on the required form indicating that he had checked the temperature but then testified at the hearing that he had checked the temperature. This is sufficient evidence from which the trial court could have inferred that the officer had failed to check the temperature, assuming that it found the officer's testimony was not believable. As such, it was proper for the trial court to find that the Director failed to lay a proper foundation for the admission of the test result such that he did not make a prima facie case for suspension.
Opinion modified by Court's own motion on November 2, 1999. This substitution does not constitute a new opinion.
The Director of Revenue (the Director) appeals from the judgment of the circuit court reinstating the driver's license of the respondent, Brian E. Endsley, after it had been administratively suspended for driving while intoxicated (DWI) pursuant to section 302.505.1
In his sole point on appeal, the Director claims that the trial court erred in reinstating the respondent's driver's license because he carried his burden of proof to support the administrative suspension of his license under section 302.505 in that there was sufficient evidence to establish, as required by the statute for suspension, that there was probable cause to arrest the respondent for DWI and that, at the time, his blood alcohol concentration (BAC) was ten-hundredths of one percent or more by weight of alcohol in his blood.
We affirm.
On February 13, 1998, Officer Michael Bridgeforth, a police officer for the City of Richmond, Missouri, observed the respondent driving fifty miles per hour in a thirty-five mile per hour zone. He pursued the respondent's vehicle, following it into a parking lot where it stopped, at which time he exited his patrol car and approached the vehicle to issue a speeding citation.
While issuing the citation, the officer smelled alcohol on the respondent's breath. The respondent admitted that he had drunk two beers. As a result, Officer Bridgeforth administered three field sobriety tests which, in his opinion, the respondent failed. He also administered a portable breath test, which showed that the respondent had a BAC, which was consistent with a charge of DWI. Based on the various test results, the officer arrested the respondent for DWI and transported him to the Richmond police station. At the station, he was given a breath test, which indicated that he had a BAC of .108 of one percent.
Following his arrest, the Director notified the respondent that his driver's license was suspended pursuant to section 302.505. The respondent filed a petition for administrative review of the suspension, on which a hearing was held on July 16, 1998. After hearing evidence, the hearing officer determined that there was sufficient evidence to establish that the respondent had been arrested upon probable cause to believe he was driving a motor vehicle while intoxicated and that his BAC was in excess of ten-hundredths of one percent. As such, the suspension of the respondent's driver's license was sustained.
On August 10, 1998, the respondent filed, pursuant to section 302.535.1, his petition for a trial de novo in the Circuit Court of Ray County. The petition was heard on September 21, 1998, by the Honorable David L. Busch. At the hearing, Officer Bridgeforth was asked about the circumstances of the respondent's arrest. The officer testified that he stopped the respondent for speeding; that he smelled alcohol on his breath; that he admitted to drinking two beers, and that he failed the three field sobriety tests given. He also testified that he administered two breath tests, a portable one at the scene and one at the station. As to the result of the portable breath test, the officer testified that it was "consistent with that of a DWI charge," establishing probable cause to arrest.
When the Director initially offered at trial the result of the breathalyzer test given at the police station through the testimony of the arresting officer, the respondent objected on the basis of insufficient foundation. While arguing the objection, the Director offered the Department of Revenue records as to the driver's license of the respondent, to which the respondent's attorney had no objection to the extent it was being offered under the business record exception, but did object on the basis of relevancy and "other objections." The court admitted the exhibit. Immediately after the exhibit's admission, counsel for the Director again asked the arresting officer about the test result, drawing another objection from respondent's counsel and a request for leave to voir dire the witness, which was granted. In his voir dire of the officer, the respondent's attorney established that the officer had performed and checked every required item on the maintenance report for the BAC Verifier used to administer the test to the respondent, except that he failed to mark the report to indicate that he had checked the simulator temperature. The officer, however, testified that, although he had failed to indicate it on the maintenance report, he had checked the simulator temperature and found it to be accurate. At the conclusion of the respondent's attorney's voir dire, the Director's attorney was allowed to voir dire the officer, during which he testified that he had never completed a maintenance report in which the simulator temperature was not "appropriate."
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