Hieger v. Director of Revenue, 51018
| Decision Date | 21 July 1987 |
| Docket Number | No. 51018,51018 |
| Citation | 733 S.W.2d 491 |
| Parties | David B. HIEGER, Appellant, v. DIRECTOR OF REVENUE, Respondent. |
| Court | Missouri Court of Appeals |
Daniel V. Boeckman, Elizabeth W. Swann, O'Fallon, for appellant.
William L. Webster, Atty. Gen., James A. Chenault, III, Sp. Asst. Atty. Gen., Jefferson City, for respondent.
Appellant (driver) was found by a preponderance of the evidence to have been driving a motor vehicle while his blood alcohol concentration (BAC) was .13 percent or more by weight, contrary to § 302.505, RSMo 1986. We affirm.
The question is whether the State made a submissible case of proving driver had a BAC of .13 percent or more by weight at the time he was driving, when the evidence was he had a BAC of .14 percent by weight one hour and twenty minutes after he was arrested.
The parties stipulated that there was probable cause to arrest driver for driving while intoxicated and that driver's BAC one hour and twenty minutes after his arrest was .14 percent by weight. The facts as stipulated are: at approximately 9:20 p.m. on April 25, 1985, an officer from the St. Charles County Sheriff's office was dispatched to Lowery Hill, St. Charles County, in response to a report of a motor vehicle in a ditch; upon arriving the officer found driver in and operating a vehicle in the ditch; at approximately 9:40 p.m., after observing driver and administering field sobriety tests, the officer arrested driver for Driving While Intoxicated; and upon questioning by the officer, driver said he had two or three beers between 7:30 p.m. and 8:30 or 9:00 p.m.
The director offered no other evidence, and the trial court found director made a submissible case. Driver put on evidence that it could not be determined whether driver had a BAC of .13 percent or more at the time he was driving the car. Driver's expert testified he would have to know how long driver had been drinking, how much driver had consumed during the last ten-fifteen minutes of the drinking, how much food was in driver's stomach, driver's weight, whether driver was an alcoholic to determine his BAC level at 9:20 p.m. based upon the reading at 10:40 p.m. because "everybody's vital functions are different."
After all the evidence the trial court found driver's "evidence raised ... mere speculation that [driver's BAC] was either higher or lower" (emphasis ours) than .14 percent at the time of arrest not that it was lower.
Driver asserts director did not prove his case by a preponderance of the evidence because it would be speculation as to what driver's BAC was at the time deputy arrested him. Driver contends the trial court would have had to speculate as to driver's rate of consumption, weight, vital functions, etc., in order to conclude that while driver was intoxicated enough to drive...
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