Grafeman v. Dir. of Revenue, No. WD 72551.

CourtCourt of Appeal of Missouri (US)
Writing for the CourtBefore: MARK D. PFEIFFER, P.J., THOMAS H. NEWTON, and ALOK AHUJA, JJ.
Citation344 S.W.3d 861
PartiesMark GRAFEMAN, Respondent,v.DIRECTOR OF REVENUE, Appellant.
Decision Date07 June 2011
Docket NumberNo. WD 72551.

344 S.W.3d 861

Mark GRAFEMAN, Respondent,
v.
DIRECTOR OF REVENUE, Appellant.

No. WD 72551.

Missouri Court of Appeals, Western District.

June 7, 2011.Motion for Rehearing and/or Transfer to


Supreme Court Denied July 5, 2011.
Application for Transfer
Denied Aug. 30, 2011.

[344 S.W.3d 862]

Trevor Bossert, Jefferson City, MO, for Appellant.Carl M. Ward, Washington, MO, for Respondent.Before: MARK D. PFEIFFER, P.J., THOMAS H. NEWTON, and ALOK AHUJA, JJ.THOMAS H. NEWTON, Judge.

The Director of Revenue appeals the trial court's judgment in favor of Mr. Mark Grafeman reinstating his driver's license. The Director contends that the trial court erred in excluding the blood-alcohol content (BAC) test results from the breathalyzer and its accompanying maintenance report because the documents were lawful. We reverse and remand.

Factual and Procedural Background

On February 18, 2009, Mr. Grafeman was arrested for driving while intoxicated. Mr. Grafeman submitted a breath sample into the DataMaster Breathalyzer, which reported a BAC level of .226. Consequently, the Director suspended Mr. Grafeman's driver's license.

Mr. Grafeman filed a petition for trial de novo in the circuit court. At the trial on March 1, 2009, Mr. Grafeman filed a written objection to the admission of the DataMaster's test results and its maintenance report. Mr. Grafeman argued that the documents should not be admitted because the permits of the officers performing the test and the maintenance on the DataMaster were void. Mr. Grafeman claimed that the permits were void because the Department of Health and Senior Services (DHSS) issued them on September 10, 2008, and October 3, 2008, after Executive Order 07–05 had transferred the authority to administer the Breath Alcohol Program (BAP) to the Department of Transportation (MoDOT). He further claimed that BAP would not return to DHSS until August 28, 2010, via another executive order. The executive orders and the accompanying reorganization plans were admitted into evidence.

[344 S.W.3d 863]

In response, the Director argued that the officers' permits were valid because DHSS had retained the authority to issue the permits for BAP after Executive Order 07–05 became effective, via Memorandums of Understanding (MOU's), which were agreements between the Missouri Highways and Transportation Commission and DHSS in 2008 and 2009. The MOU's were admitted into evidence.

The circuit court agreed with Mr. Grafeman and excluded the test results and maintenance report. Consequently, the trial court reinstated Mr. Grafeman's driving privileges. The Director appeals, raising three points.

Standard of Review

We will affirm the trial court's judgment if substantial evidence supports it, it is not against the weight of the evidence, and it correctly declares and applies the law. Vanderpool v. Dir. of Revenue, 226 S.W.3d 108, 109 (Mo. banc 2007). We review the admission or exclusion of evidence for an abuse of discretion. See id.

Legal Analysis

In its first point, the Director argues the trial court erroneously declared and applied the law and went against the weight of the evidence in excluding the test results and maintenance report because the reorganization ordered by the 2007 executive order did not take place by operation of the law and, therefore, DHSS retained its power to administer BAP. Because the first point is dispositive, we do not address the other points.

To prevail on a challenge to the suspension of a driver's license pursuant to section 302.505,1 the Director had the burden to show by preponderance of the...

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4 practice notes
  • Moore v. Dir. of Revenue, No. WD 73042.
    • United States
    • Court of Appeal of Missouri (US)
    • November 8, 2011
    ...all three districts of this court. See Salmon v. Dir. of Revenue, 343 S.W.3d 723, 725–26 (Mo.App. W.D.2011); Grafeman v. Dir. of Revenue, 344 S.W.3d 861, 864 (Mo.App. W.D.2011); Downs v. Dir. of Revenue, 344 S.W.3d 818, 821–22 (Mo.App. S.D.2011); Carney v. Dir. of Revenue, 344 S.W.3d 802, 8......
  • Riley v. Revenue, No. WD 73956.
    • United States
    • Court of Appeal of Missouri (US)
    • October 2, 2012
    ...and (2) Riley's blood alcohol level was eight-hundredths of one percent or more by weight. § 302.505.1; Grafeman v. Dir. of Revenue, 344 S.W.3d 861, 863 (Mo.App. W.D.2011). On appeal, Riley does not challenge the probable cause determination. Rather, Riley challenges the sufficiency of comp......
  • Irwin v. Dir. of Revenue, No. ED 94577.
    • United States
    • Court of Appeal of Missouri (US)
    • April 10, 2012
    ...350 S.W.3d at 871 ( citing Schneider v. Dir. of Revenue, 339 S.W.3d 533, 534 (Mo.App. E.D.2011); see also Grafeman v. Dir. of Revenue, 344 S.W.3d 861 (Mo.App. W.D.2011); Downs v. Dir. of Revenue, 344 S.W.3d 818 (Mo.App. S.D.2011)). We therefore conclude that the trial court erroneously appl......
  • Safron v. Dir. of Revenue, No. ED 95300.
    • United States
    • Court of Appeal of Missouri (US)
    • April 24, 2012
    ...have since followed that holding. See Griggs v. Dir. of Revenue, 344 S.W.3d 799 (Mo.App. S.D.2011); Grafeman v. Dir. of Revenue, 344 S.W.3d 861 (Mo.App. W.D.2011). We therefore conclude that the trial court erroneously applied the law in excluding the result of Safron's breathalyzer test. T......
4 cases
  • Moore v. Dir. of Revenue, No. WD 73042.
    • United States
    • Court of Appeal of Missouri (US)
    • November 8, 2011
    ...all three districts of this court. See Salmon v. Dir. of Revenue, 343 S.W.3d 723, 725–26 (Mo.App. W.D.2011); Grafeman v. Dir. of Revenue, 344 S.W.3d 861, 864 (Mo.App. W.D.2011); Downs v. Dir. of Revenue, 344 S.W.3d 818, 821–22 (Mo.App. S.D.2011); Carney v. Dir. of Revenue, 344 S.W.3d 802, 8......
  • Riley v. Revenue, No. WD 73956.
    • United States
    • Court of Appeal of Missouri (US)
    • October 2, 2012
    ...and (2) Riley's blood alcohol level was eight-hundredths of one percent or more by weight. § 302.505.1; Grafeman v. Dir. of Revenue, 344 S.W.3d 861, 863 (Mo.App. W.D.2011). On appeal, Riley does not challenge the probable cause determination. Rather, Riley challenges the sufficiency of comp......
  • Irwin v. Dir. of Revenue, No. ED 94577.
    • United States
    • Court of Appeal of Missouri (US)
    • April 10, 2012
    ...350 S.W.3d at 871 ( citing Schneider v. Dir. of Revenue, 339 S.W.3d 533, 534 (Mo.App. E.D.2011); see also Grafeman v. Dir. of Revenue, 344 S.W.3d 861 (Mo.App. W.D.2011); Downs v. Dir. of Revenue, 344 S.W.3d 818 (Mo.App. S.D.2011)). We therefore conclude that the trial court erroneously appl......
  • Safron v. Dir. of Revenue, No. ED 95300.
    • United States
    • Court of Appeal of Missouri (US)
    • April 24, 2012
    ...have since followed that holding. See Griggs v. Dir. of Revenue, 344 S.W.3d 799 (Mo.App. S.D.2011); Grafeman v. Dir. of Revenue, 344 S.W.3d 861 (Mo.App. W.D.2011). We therefore conclude that the trial court erroneously applied the law in excluding the result of Safron's breathalyzer test. T......

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