Lawson v. Director of Revenue

• Citation: 145 S.W.3d 443
• Decision Date: 13 July 2004
• Docket Number: No. WD 62832.,WD 62832.
• Parties: Amy M. LAWSON, Respondent, v. DIRECTOR OF REVENUE, State of Missouri, Appellant.
• Court: Court of Appeal of Missouri (US)

145 S.W.3d 443

Amy M. LAWSON, Respondent, v. DIRECTOR OF REVENUE, State of Missouri, Appellant.

No. WD 62832.

Missouri Court of Appeals, Western District.

July 13, 2004.

Motion for Rehearing and/or Transfer to Supreme Court Denied August 31, 2004.

Application for Transfer Denied October 26, 2004.

Appeal from the Circuit Court, Clay County, Anthony Rex Gabbert, J Peter Lyskowski, Jefferson City, for appellant.

Michael Shipley, Kansas City, for respondent.

RONALD R. HOLLIGER, Judge.

The Director appeals an order setting aside the administrative suspension of Amy Lawson's driver's license following a trial de novo. The Director raises two points on appeal. First, the Director contends that the trial court erred in setting aside the suspension of Lawson's license on the basis that the Director had not introduced into evidence the city ordinance under which Lawson had been arrested. The Director takes the position that he only need establish a violation of state law to support the administrative suspension. Second, the Director argues that the trial court's judgment setting aside the administrative suspension was against the weight of the evidence, was unsupported by substantial evidence, and misapplied the law because the Director introduced evidence that Lawson's blood alcohol content was over the legal limit and Lawson failed to rebut the Director's prima facie case.

We hold that the trial court's conclusion that Lawson rebutted the Director's prima facie case was supported by substantial evidence and was not against the weight of the evidence and, therefore, affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Amy Lawson was stopped for speeding by Officer Donald Ebert of the Oakview, Missouri, Police Department on the night of December 6, 2001. During Ebert's contact with Lawson, he smelled an odor of alcohol, and he therefore asked her to undergo field sobriety testing. Lawson failed the three sobriety tests she was asked to perform. The officer also noted that Lawson's eyes were watery, glassy, and bloodshot, and that her pupils were dilated. His notes also indicated that her speech was slurred and that she swayed and staggered in her attempts to walk and turn. Lawson stated during the stop that she had consumed two beers prior to driving.

Lawson was placed under arrest and taken to the Oakview police station, where she was asked (after being advised of her rights under Miranda and the Missouri Implied Consent Law) to submit to breath testing of her blood alcohol level. Lawson consented to testing, and the breath testing equipment produced a resulting blood alcohol result of .081 percent. Lawson was charged with the offenses of exceeding the posted speed limit, a violation of Oakview Municipal Ordinance 97-48.3, and operating a motor vehicle on the street while intoxicated, a violation of ordinance 97-43.2. She subsequently pled guilty to those offenses in municipal court.

Lawson was notified that her license was to be administratively suspended pursuant to §§ 302.500-.545, RSMo. On February 26, 2002, she filed her petition for a trial de novo in the circuit court. The matter then proceeded to trial on February 19, 2003. At trial, the court found that the Director had not made a prima facie case because the municipal ordinance under which Lawson had been arrested had not been entered into evidence. Further, the trial court found that Lawson had rebutted the Director's evidence regarding her breathalyzer test results, through expert testimony that indicated, based upon the State's maintenance records for the breath testing equipment, that the machine was rendering results approximately .002 percent high. Based on that expert testimony, the trial court concluded that Lawson's blood alcohol level was only .079 percent at the time of the arrest. The court, therefore, set aside the administrative suspension of Lawson's license.

The Director now appeals.

DISCUSSION

In reviewing the judgment of the trial court, following a trial de novo concerning an administrative driver's license suspension we proceed under the standard provided by Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Reckner v. Fischer, 121 S.W.3d 296, 300 (Mo.App.2003). Under that standard, "[w]e will affirm the judgment of the trial court unless there is no substantial evidence to support it, the judgment is against the weight of the evidence, or it erroneously declares or applies the law." Id. We accept the evidence that supports the trial court's judgment and all reasonable inferences therefrom, disregarding all contrary evidence and inferences. Id.

In order to make a prima facie case for license suspension, the Director is required to show two elements by a preponderance of the evidence. First, the Director must establish that the person was arrested upon probable cause. Singleton v. State, 120 S.W.3d 218, 221 (Mo.App.2003). Second, the Director must show that the person had a blood alcohol concentration of .080 percent at the time of the arrest. Id. If a municipal ordinance is the basis for the revocation, the director must also show that the arresting officer has been certified by the Department of Public Safety. Siehndel v. Russell-Fischer, 114 S.W.3d 449, 451 (Mo.App.2003).

The Director has the burden to present a prima facie case. If that threshold is met, the driver is entitled to present evidence in an attempt to rebut the Director's prima facie case. Singleton, 120 S.W.3d at 221. While the burden of production shifts to the driver when the Director establishes a prima facie case, the burden of persuasion remains with the Director throughout the proceedings. Verdoorn v. Dir. of Revenue, 119 S.W.3d 543, 546 (Mo. banc 2003).

The issues on appeal in the present matter concern both the Director's prima facie case and Lawson's rebuttal of that case. The Director's first point on appeal argues that the trial court improperly held that admission of the ordinance was necessary to establish a prima facie case. We need not reach this issue, however, as the Director's second point on appeal is dispositive.¹ In that second point on appeal, the Director argues that the trial court erred in concluding that Lawson had rebutted the Director's prima facie case. Specifically, the Director contends that Lawson failed to rebut the second element of that case, namely that Lawson had a blood alcohol level of .080 percent at the time of the arrest. Lawson responds that this element of the case was rebutted by substantial evidence she presented during the trial de novo proceedings.

That evidence was offered in the form of the deposition testimony of Dr. William Hemphill, a forensic toxicologist. His testimony focused upon the maintenance testing results of the breathalyzer subsequently used to test Lawson, and how it indicated that the machine tended to register a blood alcohol level that was inaccurately high. The maintenance testing includes a calibration check in which a sample...