Hunt v. Director of Revenue

• Decision Date: 03 August 1999
• Citation: 10 S.W.3d 144
• Parties: (Mo.App. E.D. 1999) . James Paul Hunt, Respondent, v. Director of Revenue, Appellant Case Number: 73514 Missouri Court of Appeals Eastern District Handdown Date: 0
• Court: Missouri Court of Appeals

10 S.W.3d 144 (Mo.App. E.D. 1999)

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.

James Paul Hunt, Respondent, v. Director of Revenue, Appellant

Case Number: 73514

Missouri Court of Appeals Eastern District

Handdown Date: 08/03/99

Appeal From: Circuit Court of St. Charles County, Hon. Donald E. Dalton

Counsel for Appellant: Nadia Termanini

Counsel for Respondent: Timothy M. Joyce

Opinion Summary: The Director of Revenue appeals the circuit court judgment setting aside the revocation of Driver James Paul Hut's driving privileges.

JUDGMENT REVERSED AND REMANDED WITH DIRECTIONS.

Division Three holds: Adequate evidence exists to support a finding of probable cause to arrest Driver for driving while intoxicated. The arresting officer's observance of illegal operation of Driver's motor vehicle and indicia of intoxication upon the officer's contact with Driver were sufficient to establish probable cause to arrest. Furthermore, Director was not required to attach a certificate of analysis to the breath analyzer maintenance report. The retrospective application of 19 CSR 25-30.051(4) contained a clear and unambiguous intent to supercede the retrospective application of 19 CSR 20-30.050(4), limiting the application of 19 CSR 20-30.050(4) to its effective date and subsequent. The applicable language of 19 CSR 25-30.051(4) requires only that the maintenance reports comply with the regulations in effect at the time that they were completed. The regulation in effect at the time that the maintenance report was completed did not require the attachment of a certificate of analysis. Director's report complied with all of the regulation's requirements. Therefore, the blood alcohol test was admissible to prove Driver's BAC was over .10%.

Opinion Author: Paul J. Simon, Presiding Judge

Opinion Vote: JUDGMENT REVERSED AND REMANDED WITH DIRECTIONS. Crane and Mooney, JJ., concur.

Opinion:

The Director of Revenue (Director) appeals the judgment of the Circuit Court of St. Charles County, Missouri, setting aside the revocation of driving privileges of James Paul Hunt (Driver).

On appeal, Director contends the trial court erred by: (1) setting aside Hunt's revocation because it erroneously applied the law, and the judgment is against the weight of the evidence in that Driver was arrested upon probable cause that he was driving in violation of an alcohol related offense; (2) excluding the maintenance report because it erroneously applied the law in that the Director did not need to produce a certificate of analysis under 19 CSR 25-30.051 for maintenance reports completed before March 26, 1996; and (3) setting aside Driver's revocation because it is an erroneous application of the law and is not supported by substantial evidence in that the Director proved Driver had a blood alcohol content of .10 percent or more in that Driver only objected to the admission of the maintenance report, and the breath test results were admitted without objection. We reverse and remand.

Reviewing a court tried case, we affirm the judgment of the trial court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares, or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.banc 1976).

The record on appeal shows that on July 16, 1995, Deputy J. Woerther of the St. Charles County Sheriff's Department observed a gray Lincoln traveling north on Highway T in St. Charles County. Woerther observed the automobile moving from the shoulder on the right side of the northbound lane, over the center line into the southbound lane, and back on to the right shoulder. Woerther attempted to position his vehicle closer to that of Driver. At that time, Driver used the southbound lane to pass a car while going up a hill. Woerther then activated his vehicle's emergency lights and audible siren, passed the car that Driver had just passed and pulled over the vehicle that Driver was operating and in which a female was a passenger. After being pulled over, Driver exited the car and approached Woerther.

Upon contact with Driver, Woerther observed an odor of alcohol on Driver's breath and noticed Driver's speech to be slurred and his eyes to be glassy and bloodshot. Further, Woerther observed that Driver appeared to have trouble balancing himself as he stood. Woerther issued three citations to Driver. The first citation was for violating section 304.015, RSMo 1994 (all further references shall be to RSMo 1994 unless otherwise indicated) by failing to drive on the right half of the roadway when there was sufficient width, the second citation was for violating section 304.016 by driving his vehicle to the left side of the roadway when his view was obstructed by a hill, and the third citation was for violating section 577.010 by operating a motor vehicle while in an intoxicated condition. Severe lightning and heavy rain prevented Woerther from performing field sobriety tests on Driver at the site where he was pulled over. Woerther transported Driver and his female companion to the St. Charles County Sheriff's Department. On the way to the Sheriff's Department, Driver made a spontaneous utterance that he and his female companion had consumed two bottles of wine at the wineries in Augusta. Driver was given three field sobriety tests at St. Charles County Adult Detention, which he failed. After failing the three sobriety tests, Driver was read his Miranda rights and waived them. When asked for a breath sample, Driver indicated that he wished to contact his lawyer. Driver was given access to a phone and a directory, but made no attempt to contact anyone. Driver voluntarily submitted to a breath test, which was administered by Deputy R. E. Koester of the St. Charles County Police Department. The breath test indicated that Driver's blood alcohol concentration (BAC) was .16 percent.

Subsequently, Driver was arrested and charged with driving while intoxicated. The arresting officer gave Driver a notice of revocation of his driving privileges in accordance with section 302.505, and Driver made a timely request for an administrative hearing under section 302.530. The administrative hearing officer sustained the revocation of Driver's driving privileges. Driver filed a timely petition for trial de novo under section 302.535.

At the trial de novo on October 18, 1997, Director offered exhibits A and B pursuant to the business records exception. Exhibit A contained Department of Revenue records consisting of: Driver's driving record, the citation issued to Driver for driving while intoxicated, the Alcohol Influence Report, the operational checklist for the breath analyzer used to test Driver, the breath analyzer printout, the breath analyzer maintenance report and the written narrative setting out what Woerther observed. Driver objected to Exhibit A, complaining that it did not contain the findings of fact and conclusions of law of the administrative hearing officer, and that some of the reports of the police officers were subject to cross examination and may have been hearsay. Driver's general objection to the admission of exhibit A was overruled, but the trial court reserved the right to rule on objections to specific parts of the exhibit later in the trial.

Director then offered exhibit B, containing records of the Department of Revenue consisting of the maintenance report on the breath analyzer device used by Driver, printouts which accompany the report and the type II permit authorizing the testing officer to perform such maintenance checks. Director argued the maintenance report was prepared before any regulation requiring evidence of a manufacturer's certification (certificate of analysis) of the simulator solution used to verify and calibrate the breath analyzer went into effect, and therefore no certificate was required, nor was any attached. Director relied on our holding in Declue v. Director of Revenue, 945 S.W.2d 684 (Mo.App. E.D. 1997), and the newest rule then in effect, 19 CSR 25-30.051, in arguing that regulations requiring a certificate of analysis were not retroactive.

In his objection to the admittance of exhibit B, Driver contended that evidence of the manufacturer's certification was required to be attached to the maintenance report for verification of Driver's BAC under Fronabarger v. Director of Revenue, 950 S.W.2d 258 (Mo.App. E.D. 1997). See 19 CSR 20-30.050. In Fronabarger, we held that breath analyzer results were not admissible when there was no evidence that the solution used to calibrate the breath analyzer was certified by the manufacturer, and without this evidence, the record would not be sufficient to sustain a revocation of a driver's driving privileges. Fronabarger, 950 S.W.2d at 259.

The trial court sustained Driver's objection to exhibit B. It stated that, because the old rule had already been applied retrospectively, the expression of an intent in a newer rule to limit that retrospective application would not be sufficient to go back and limit the original application of the old rule. The court stated that, in order to reach the result desired by Director, a contrary intent would have to have been expressed by the original, earlier rule. Director then made an offer of proof as to what exhibit B stated, which the trial court denied. The trial court sustained Driver's petition for review and overruled the administrative hearing officer's finding that Driver operated a vehicle while his BAC was at least .10 percent. The trial court further found that the arresting officer did not have probable cause to arrest Driver for driving while intoxicated or an alcohol-related offense. The record fails to reveal arguments by either party on the issue of probable cause. There were no witnesses called by either party.

In her first point on appeal, Director argues that the trial court erred in setting aside Driver's...