Reynolds v. Director of Revenue

• Decision Date: 20 June 2000
• Parties: (Mo.App. W.D. 2000) Michael Reynolds, Respondent, v. Director of Revenue, State of Missouri, Appellant. WD57398 0
• Court: Missouri Court of Appeals

20 S.W.3d 571 (Mo.App. W.D. 2000)

Michael Reynolds, Respondent, v. Director of Revenue, State of Missouri, Appellant.

WD57398

Missouri Court of Appeals Western District

06/20/2000

Appeal From: Circuit Court of Lafayette County, Hon. John G. Miller

Counsel for Appellant: Evan J. Buchheim

Counsel for Respondent: Michael D. Holzknecht

Opinion Summary: The Director of Revenue appeals the judgment of the trial court reinstating Michael Reynolds's driving privileges. The Director challenges the trial court's decision that the Director failed to prove Mr. Reynolds had a blood alcohol concentration of at least .10% because the evidence offered by the Director was not sufficient to prove that the simulator solution used in the breath analyzers was from an approved supplier.

Division IV holds: The Director provided sufficient evidence to prove that the simulator solution used came from an approved supplier under 19 C.S.R. 25-30.050. Therefore, the Director laid a proper foundation for the admission of the breath test results that showed that Mr. Reynolds had a BAC of .10% or more. Since the parties had stipulated that Mr. Reynolds was arrested upon probable cause to believe that he was driving while intoxicated, the Director had established a prima facie case. Since Mr. Reynolds did not offer any evidence to rebut the Director's prima facie case, the trial court's decision to reinstate Mr. Reynolds's driving privilege is against the weight of the evidence.

Lowenstein and Ulrich, JJ., concur.

Patricia Breckenridge, Chief Judge

The Director of Revenue appeals the judgment of the trial court reinstating Michael Reynolds's driving privileges. The Director challenges the trial court's decision that the Director failed to prove Mr. Reynolds had a blood alcohol concentration of at least .10% because the evidence offered by the Director was not sufficient to prove that the simulator solution used in the breath analyzers was from an approved supplier. Because this court finds that the Director offered sufficient evidence to prove that the simulator solution used was from an approved supplier, the trial court's judgment is reversed and the cause is remanded with directions to reinstate the Director's suspension of Mr. Reynolds's driving privileges.

Factual and Procedural History

On May 8, 1997, Mr. Reynolds was arrested in Lafayette County for driving while intoxicated. Mr. Reynolds consented to a breath test, which was administered using a BAC Verifier breath analyzer. The test result showed a blood alcohol concentration of .304 %. Mr. Reynolds requested a second test, which was administered on a DataMaster breath analyzer. The result from the second test showed a blood alcohol concentration of .28%. Upon receipt of a report of this information, the Director suspended Mr. Reynolds's driving privileges under section 302.505, RSMo Cum. Supp. 1999,¹ for driving with a blood alcohol concentration of .10% or more. The decision was upheld after an administrative hearing, and Mr. Reynolds filed a petition for a trial de novo pursuant to section 302.535.

The trial de novo was held on April 30, 1999. Before the Director put on any evidence at the trial de novo, the trial court asked if there were any preliminary matters. Defense counsel told the court that he agreed to stipulate that the arresting officer had probable cause to arrest Mr. Reynolds for driving while intoxicated, but that he disputed the admissibility of the test results indicating that Mr. Reynolds's blood alcohol content (BAC) was .10% or more at the time of his arrest. Defense counsel stated, "We're -- we are obviously agreeing that -- that the test results exceeded the legal limit. But our problem is that we don't feel the Director can get there based upon the evidence and the record on the certificate of analysis of the testing solution." The trial court admitted the test results indicated that the manufacturer of the simulator solution in Lot Number 96004, used by Trooper Hughes to maintain the DataMaster, was "Rep Co Marketing, Inc." The officer testified that he used simulator solution he obtained from Highway Patrol Troop A's supply and that the solution came in a sealed box that included a certificate of analysis. The officer also testified that the label on the bottle of simulator solution he used to maintain the breath analyzer stated "RepCo." The certificate of analysis accompanying the sealed box of simulator solution was also included in Exhibit A. The certificate of analysis for Lot Number 96004 was on RepCo Marketing, Inc. letterhead and was signed by Cecil B. Garner, President, RepCo Marketing, Inc.

Mr. Reynolds did not offer any evidence, and the trial court took the case under advisement. On May 11, 1999, the trial court issued a judgment reinstating Mr. Reynolds's license. The judgment stated that the Director failed to carry his burden of proof and persuasion. Specifically, the trial court found the Director failed to prove that the simulator solutions used in each of the two breath tests were from an approved supplier. The Director appeals.

Standard of Review

After an adverse decision from the Department of Revenue, a driver may petition for a trial de novo in the circuit court. Section 302.535.1, RSMo Cum. Supp.1998; Zwyers v. Director of Revenue, 948 S.W.2d 473, 474 (Mo. App. 1997). On appeal, this court reviews the circuit court's judgment and not the administrative order. Id. Review of the trial court's judgment after a trial de novo is governed by the standard set forth in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Kimber v. Director of Revenue, 817 S.W.2d 627, 629 (Mo. App. 1991). The decision of the trial court must be affirmed on appeal unless there is no substantial evidence to support the decision, the decision is against the weight of the evidence, or the trial court erroneously declares or applies the law. Id. at 629-30. This court will accept as true "the evidence supporting the circuit court's judgment, as well as all reasonable inferences drawn from such evidence," and will disregard all contrary evidence and inferences. Id. at 630.

At a trial de novo, the Director has the burden of proving by a preponderance of the evidence a prima facie case for suspension of a driver's license. Haas v. Director of Revenue, 975 S.W.2d 483, 484 (Mo. App. 1998). The Director satisfies this burden "by presenting evidence that: (1) the driver was arrested upon probable cause that he or she was driving in violation of an alcohol-related offense; and (2) the driver had been driving with a blood alcohol content of .10 percent or...