Pool v. Lohman, 20803
| Citation | 936 S.W.2d 195 |
| Decision Date | 13 December 1996 |
| Docket Number | No. 20803,20803 |
| Parties | David Wayne POOL, Plaintiff-Respondent, v. Janette M. LOHMAN, Director of Revenue, State of Missouri, Respondent-Appellant. |
| Court | Missouri Court of Appeals |
Jeremiah W. (Jay) Nixon, Attorney General, Charles L. Gooch, Special Assistant Attorney General, Mo. Dept. of Revenue, for appellant.
No brief filed by Respondent.
Plaintiff sought "trial de novo" following the suspension of his privileges to operate a motor vehicle. The petition alleged that Plaintiff was arrested on March 4, 1995, for driving while intoxicated; that his driving privileges were suspended as a result of the arrest; which suspension was sustained following an administrative hearing. Defendant-Appellant admitted these allegations.
Following non-jury trial, the trial court ordered that Plaintiff's driving privileges be reinstated. Defendant appeals presenting one point relied on. 1
Review is under Rule 73.01. "As that rule is interpreted, this Court is to affirm the trial court's determination, unless it is not supported by any substantial evidence, it is against the weight of the evidence, it erroneously declares the law, or it erroneously applies the law." Fischer v. Director of Revenue, 928 S.W.2d 424, 425 (Mo.App.1996). "Deference to the trial court's findings is not required when the evidence is uncontroverted and the case is virtually one of admitting the facts or when the evidence is not in conflict." Justice v. Director of Revenue, 890 S.W.2d 728, 730 (Mo.App.1995).
The Director of Revenue is authorized by Section 302.505.1, RSMo 1994, to suspend an operator's license if the person is arrested upon probable cause for driving while intoxicated or driving with an excessive blood alcohol concentration, and chemical analysis reveals a blood alcohol concentration exceeding the legal limit. Fitzgerald v. Director of Revenue, 922 S.W.2d 478, 480 (Mo.App.1996). See also Stewart v. Director of Revenue, 702 S.W.2d 472, 475 (Mo. banc 1986). Probable cause for the arrest and chemical analysis demonstrating a blood alcohol content of .10% or more fully satisfies the requirement of § 302.505.1. Fitzgerald, 922 S.W.2d at 480.
Defendant-Appellant contends that setting aside the revocation of Plaintiff's driving privileges was erroneous because the trial court based its judgment upon evidence of an issue judicially admitted and the judgment was otherwise against the weight of the evidence. This contention is premised upon the trial court's finding that Plaintiff was issued a traffic citation for the offense on February 4, 1995, and that a checklist pertaining to a chemical analysis of blood-alcohol concentration performed through a breathalyzer test was also filled out on that date. The trial judge ruled for Plaintiff on two specific basis: (1) that there was no maintenance check performed on the breathalyzer machine within thirty-five days of Plaintiff's test, as required under 19 C.S.R. 20-30.031(3), citing in the court's order Sellenriek v. Director of Revenue, 826 S.W.2d 338 (Mo. banc 1992); (2) that the certification and Department of Health data checklist performed February 4, 1995, does not allow proper foundation for the blood-alcohol content test made on March 4, 1995, citing Collins v. Director of Revenue, 691 S.W.2d 246 (Mo. banc 1985).
The apparent basis for these findings was the arresting officer dating the traffic citation and checklist as February 4, 1994. All other documents show that it occurred on March 4, 1995. The arresting officer acknowledged that he may have erred on the date that he put on the traffic citation and checklist.
As earlier mentioned, Plaintiff alleged that the arrest occurred on March 4, 1995, and Defendant admitted that and other allegations of the petition. Thus, the date of Plaintiff's arrest is established as being on that...
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