Smith v. Director of Revenue

• Decision Date: 14 March 2000
• Citation: 13 S.W.3d 700
• Parties: (Mo.App. W.D. 2000) Stephen Robert Smith, Respondent, v. Director of Revenue, State of Missouri, Appellant. WD56962 0
• Court: Missouri Court of Appeals

13 S.W.3d 700 (Mo.App. W.D. 2000)

Stephen Robert Smith, Respondent, v. Director of Revenue, State of Missouri, Appellant.

WD56962

Missouri Court of Appeals Western District

03/14/2000

Appeal From: Circuit Court of Platte County, Hon. Daniel M. Czamanske

Counsel for Appellant: Evan J. Buchheim

Counsel for Respondent: Jeffrey S. Eastman

Opinion Summary: The Director of Revenue appeals from the circuit court judgment reinstating Smith's driver's license after it had been administratively suspended for driving while intoxicated, pursuant to section 302.505, RSMo Supp. 1996.

Division III holds: Under section 302.505.1, the Director makes a prima facie case for the suspension of a person's license by establishing by a preponderance of the evidence that there was probable cause: (1) to arrest the driver for DWI; and (2) to believe that, at the time of the arrest, the driver's BAC was at least ten-hundredths of one percent or more by weight. Once the Director has established a prima facie case, the burden shifts to the driver to present evidence to rebut the prima facie case by a preponderance of the evidence.

The Director met his burden to establish probable cause to arrest the driver for DWI. The Director then attempted to establish that there was probable cause to believe that the driver's BAC was equal to or greater than ten-hundredths of one percent by introducing into evidence Exhibit D. This exhibit contained, inter alia, a copy of a "Certificate of Analysis" on stationery bearing the letterhead of Guth Laboratories, Inc. (Guth) for the simulator solution used by the sheriff's department to calibrate the breath analyzer machine used to perform the breathalyzer test. The driver objected to the exhibit on the basis that Guth had not complied with the court's discovery order to produce documentation and information related to its Certificate of Analysis. The trial court sustained the objection and excluded the exhibit.

There is no dispute that the exhibit was admissible. Nonetheless the court excluded it as a sanction for Guth's failure to comply with its discovery order. This it could not do. The Director could not be sanctioned for the failure of Guth, a third party, to provide the documents and information in its possession when Guth was not under the legal control of the Director. Any sanction by the court for Guth's failure to produce the documents and information requested would have to have been against Guth, not the Director.

Even assuming, arguendo, that the trial court could have somehow excluded the Certificate of Analysis because of Guth's failure to comply with the discovery order, such would not have prevented the Director from admitting the other documents in the exhibit, including the respondent's BAC test result, and satisfying the second prong of his prima facie case for suspension. As such, the Director made a prima facie case for suspension of the driver's license, shifting the burden to him to rebut the same.

Edwin H. Smith, Judge

The Director of Revenue (the Director) appeals from the judgment of the circuit court reinstating the driver's license of the respondent, Stephen Robert Smith, after it had been administratively suspended for driving while intoxicated (DWI), pursuant to section 302.505.¹

In his sole point on appeal, the Director claims that the trial court erred in reinstating the respondent's driver's license because, on the admissible evidence, he made a prima facie case for suspension under section 302.505 in that the evidence established that there was probable cause to: (1) arrest the respondent for DWI; and (2) believe that, at the time, his blood alcohol concentration (BAC) was ten-hundredths of one percent or more by weight of alcohol in his blood.

We reverse and remand.

Facts

On April 5, 1997, Deputy Michael Stephens, a deputy sheriff for the Platte County Sheriff's Department, followed the respondent's motor vehicle, a Dodge truck, southbound on Interstate 29. As he was following the truck, he observed it weaving on the highway, almost striking another vehicle and a stranded motorist on the right shoulder. As a result, he pulled the truck over and made contact with the respondent.

While conversing with the respondent, Deputy Stephens smelled alcohol on his breath and observed that his eyes were glassy. He also saw a twelve-pack of beer on the seat next to the respondent and several beer cans on the floor of the truck. As a result of these observations, Deputy Stephens administered three field sobriety tests, the walk-and-turn test, the one leg stand test, and the gaze nystagmus test, which, in his opinion, the respondent failed. Following these tests, he advised the respondent that he was under arrest for DWI and transported him to the sheriff's department. While there, the respondent was read his Miranda rights and submitted to a breathalyzer test requested and performed by Deputy Stephens, which indicated that he had a BAC at the time of .116 of one percent.

Subsequent to his arrest, the Director notified the respondent that his driver's license had been suspended pursuant to section 302.505. The respondent filed a petition for administrative review of the suspension. After a hearing, the hearing officer sustained the suspension of the respondent's driver's license.

At some point in time, the respondent obtained a copy of his driving record as maintained by the Department of Revenue. Within this file was a "Datamaster Maintenance Report," dated March 22, 1997, which referenced use of "Guth Labs Lot # 96310." According to this report, the breath analyzer machine used to test the respondent's BAC on April 5, 1997, was last inspected on March 22, 1997, by Patrick Clark, a sergeant with the sheriff's department. The file also contained a copy of a "Certificate of Analysis" on stationery bearing the letterhead of Guth Laboratories, Inc., (Guth), for the simulator solution used by the sheriff's department to calibrate the breath analyzer machine used to perform the breathalyzer test given to the respondent. The certificate was signed by Guth's president and stated that "[r]andom samples of Lot Number 96310 of Alcohol Reference Solution for Simulator were analyzed by gas chromatography and found to contain 0.1214 percent (w/vol) ethyl alcohol."

On July 31, 1997, the respondent filed a three-count petition in the Circuit Court of Platte County against the Director, the sheriff's department, and Guth. In Count I, he sought, pursuant to section 302.535.1, a trial de novo regarding the Director's decision to suspend his driver's license, seeking the reinstatement of his license. In Count II, he brought an action, pursuant to Rule 58.01(d),² against the sheriff's department, requesting the production of specified information and documents. In Count III, he brought an action, pursuant to Rule 58.01(d), against Guth requesting:

A. A copy of the run of the gas chromatographs of each random sample of Lot No. 96310 analyzed;

B. A copy of the standardized protocol of the laboratory which analyzed each random sample of Lot No. 96310;

C. A copy of any and all studies used to determine and relied upon in establishing the expiration date for Guth Laboratories, Inc., Lot No. 96310; and

D. A copy of any and all studies used to determine the effects of the presence of any interfering substances in a simulator solution such as Guth Laboratories, Inc., Lot No. 96310.On August 7, 1997, Guth was served with a summons, issued by the Platte County Circuit Court, to file a responsive pleading to the respondent's petition. Guth failed to respond to the summons. On July 22, 1998, the respondent moved for an "interlocutory judgment on default and order compelling production of documents upon penalty of exclusion." On September 21, 1998, the trial court sustained the respondent's motion and, pursuant to Rule 74.05(b), entered an interlocutory order of default, ordering Guth to produce the documentation and information requested in the respondent's petition by noon on October 21, 1998, and advising it that, if it did not, the court would "preclude and prohibit the admission into evidence the 'Certificate of Analysis' as tendered under the letterhead of Guth Laboratories, Inc."

Guth failed to comply with the trial court's September 21, 1998, order. As a result, on January 20, 1999, prior to the trial de novo on the appellant's petition to reinstate his license, the respondent moved, pursuant to Rule 74.05(a), for a default judgment against Guth because of its failure to produce the information and documentation, as ordered by the trial court in its September 21, 1998, order, and requested that the certificate of analysis from Guth be excluded from evidence in the reinstatement of license proceeding. In response to the motion, the Director's counsel advised the trial court that he had no objection and had no plans to introduce the certificate at the hearing. After hearing argument of counsel, the trial court sustained the respondent's motion to exclude the certificate.

The case proceeded to trial before the Honorable Daniel M. Czamanske. At trial, the Director called as a witness Sergeant Patrick Clark, who testified that he was a Type II permit holder for purposes of inspecting and maintaining breath analyzer machines and, on March 22, 1997, performed maintenance on the breath analyzer machine used to test the respondent's BAC on April 5, 1997. He further testified that he found the breath analyzer machine to be operating correctly at that time. When asked by the Director's counsel if he independently verified the concentration of the simulator solution provided to him by an outside entity or relied exclusively upon the representations of that entity, the respondent objected to the questioning on the basis that Sergeant Clark would be required to rely on representations from Guth and Guth had failed to produce the documentation as previously requested by the respondent and...