Prozorowski v. Director of Revenue

• Decision Date: 29 February 2000
• Parties: (Mo.App. E.D. 2000) Stephen K. Prozorowski, Respondent, v. Director of Revenue, Appellant Case Number: ED76011 Missouri Court of Appeals Eastern District Handdown Date: 0
• Court: Missouri Court of Appeals

12 S.W.3d 405 (Mo.App. E.D. 2000)

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

Stephen K. Prozorowski, Respondent, v. Director of Revenue, Appellant

Case Number: ED76011

Missouri Court of Appeals Eastern District

Handdown Date: 02/29/2000

Appeal From: Circuit Court of St. Louis County, Hon. Robert Cohen

Counsel for Appellant: Evan J. Buchheim

Counsel for Respondent: Timothy Kelly

Opinion Summary: The Director of Revenue (Director) appeals the judgment reinstating the driving privileges of Prozorowski.

REVERSED AND REMANDED WITH DIRECTIONS.

Division Two holds: The court's finding that the arresting officer did not have probable cause to arrest Prozorowski for driving while intoxicated is against the weight of the evidence and not supported by substantial evidence.

Opinion Author: Robert G. Dowd, Jr., Judge

Opinion Vote: REVERSED AND REMANDED WITH DIRECTIONS. Crane, P.J. and Sullivan, J., concur.

Opinion:

The Director of Revenue (Director) appeals from the judgment reinstating the driving privileges of Stephen K. Prozorowski.¹ We reverse and remand.

On July 10, 1998, Officer Morris of the Town and Country Police Department arrested Prozorowski for driving while intoxicated. Prozorowski also consented to a breathalyzer test, which showed he had a blood alcohol content of .162 percent. Due to his arrest, Director suspended his driving privileges pursuant to Section 302.505, RSMo Cum Supp. 1999. Prozorowski filed a petition for de novo review in St. Louis County circuit court.

At trial, Director submitted the case on the Department of Revenue records. These records included the Alcohol Influence Report prepared by Morris and were certified by the custodian of records for the Department of Revenue pursuant to Section 302.312, RSMo Cum. Supp. 1999. When the records were offered, Prozorowski objected in writing to "hearsay in police report for officer who did not observe the Petitioner driving or operating the motor vehicle." Director offered no other evidence and Prozorowski offered no evidence. The commissioner found that while Prozorowski had a blood alcohol content of .10 percent or more, the arresting officer did not have probable cause to arrest him for driving while intoxicated. The commissioner noted there was no credible evidence that Prozorowski had been driving or operating the motor vehicle. The commissioner recommended that the Director reinstate Prozorowski's driving privileges. The circuit court signed the commissioner's findings and recommendations as its judgment. Director now appeals.

On appeal, Director contends the trial court erred in setting aside Prozorowski's suspension because its decision that there was no evidence that Prozorowski had been driving or operating the motor vehicle is against the weight of the evidence and further, the trial court misinterpreted and misapplied the law in reaching its conclusion. We note that Prozorowski has not filed a brief responding to Director's appeal.

The court's judgment will be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

At the trial de novo, Director had the burden of showing by a preponderance of the evidence that: (1) the arresting officer had probable cause to arrest Prozorowski for driving while intoxicated; and (2) his BAC was at least .10 percent at the time of his arrest. Whitworth v. Director of Revenue, 953 S.W.2d 142, 143 (Mo. App. E.D. 1997). When the Director makes a prima facie case, the burden then shifts to the driver to present evidence to rebut the prima facie case by a preponderance of the evidence. Green v. Director of Revenue, 961 S.W.2d 936, 938 (Mo. App. E.D. 1998).

There is no dispute that Prozorowski had a BAC of .10 percent or more by weight. The dispute at trial centered on whether the arresting officer had probable cause to arrest Prozorowski for driving while intoxicated when the Alcohol Influence Report indicates the arresting officer relied upon the statements of another police officer who observed Prozorowski driving. In the narrative portion of the report, Officer Morris stated:

On this date I was requested to assist Cpl Wolfe 62 on traffic WBI64/W of I270. Upon arrival Cpl Wolfe stated he observed the suspect vehicle stop on the shoulder of I64....