Reinert v. Director of Revenue, 77223
| Citation | 894 S.W.2d 162 |
| Decision Date | 21 February 1995 |
| Docket Number | No. 77223,77223 |
| Parties | Kelly Joseph REINERT, Respondent, v. DIRECTOR OF REVENUE, Appellant. |
| Court | United States State Supreme Court of Missouri |
Jeremiah W. (Jay) Nixon, Atty. Gen., James A. Chenault, III, Sp. Asst. Atty. Gen., Mo. Dept. of Revenue, Jefferson City, for appellant.
David J. Ferman, Clayton, for respondent.
The Director of Revenue appealed the judgment of the trial court reinstating the driving privileges of Kelly Joseph Reinert. The Missouri Court of Appeals, Eastern District, affirmed, then ordered transfer to this Court. Reversed and remanded.
Reinert was arrested for driving while intoxicated. The director suspended Reinert's driving privileges pursuant to § 302.505.1, RSMo Supp.1992, which provides that the Department shall suspend the license of any person upon a determination that the person was arrested upon probable cause to believe he was driving a motor vehicle while the alcohol concentration in his blood was ten-hundredths of one percent or more by weight. Reinert petitioned for administrative review of the director's decision pursuant to § 302.530.1, RSMo1986. The issue at the hearing was whether by a preponderance of the evidence Reinert was driving a vehicle under the circumstances set out in § 302.505, RSMo Supp.1992. After relief was denied in the administrative proceeding, Reinert sought trial de novo in the circuit court pursuant to § 302.535.1, RSMo1986.
Trial was set for July 29, 1993. On July 22, 1993, the director mailed to Reinert the maintenance report for the breath analysis machine the arresting officer used to determine Reinert's blood alcohol content. Included with the report was an affidavit from the custodian of the report attesting that it was a business record. Reinert's counsel received the report and the affidavit on or before July 27, 1993.
On the day of trial, but before the proceedings began, Reinert moved to exclude the maintenance report, claiming that he had not received timely notice that the director intended to introduce it at trial. The court sustained the motion.
The trial commenced. The arresting officer testified that he pulled Reinert over for driving erratically. The officer testified that he arrested Reinert for driving while intoxicated after Reinert failed three field sobriety tests. The officer took Reinert to a police station where he submitted to a breath alcohol test. The officer testified, without objection, that the test indicated that Reinert had a blood alcohol level of .211 percent. The director moved to admit into evidence the printout from the breath analysis machine reflecting Reinert's blood alcohol level. The court admitted the printout without objection.
When the director sought to admit the maintenance report, Reinert objected. The court reserved ruling on the objection to allow the parties to file briefs on the issue. In an order dated August 26, 1993, the court stated: "THE COURT, having reviewed the arguments and briefs of counsel ... sustains Petitioner's objections to the admission of the Intoxilyzer Maintenance Report and accompanying Affidavit and rules in favor of Petitioner in this trial de novo." The trial court ordered Reinert's driving privileges reinstated.
The director argues that she complied with § 490.692, RSMo. Supp.1992; therefore, the trial court erred in sustaining Reinert's objection to the admission of the maintenance report. Section 490.692 provides that a party may lay the foundation for the...
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