Soval v. Director 0f Revenue
| Citation | 2 S.W.3d 854 |
| Parties | (Mo.App. W.D. 1999) Mark David Soval, Respondent v. Director of Revenue, Appellant WD55726 0 |
| Decision Date | 28 September 1999 |
| Court | Missouri Court of Appeals |
Appeal From: Circuit Court of Morgan County, Hon. James A. Grantham
Counsel for Appellant: Evan J. Buchheim
Counsel for Respondent: Timothy R. Cisar
Opinion Summary: The Director of Revenue appeals from the circuit court judgment setting aside the Director's revocation of Soval's driving privileges.
Court holds: (1) The Director established by a preponderance of the evidence that the authorities had probable cause to arrest Soval for driving while intoxicated.
(2) The Director laid a sufficient foundation to introduce the breath test results to establish by a preponderance of the evidence that at the time of arrest, Soval's blood alcohol content was at least .10 percent. The solution used in this case did not require a certificate of analysis, and admission of the printout of the breath test was not necessary for the Director to prove the test results.
The Director of Revenue ("Director") appeals from the circuit court's judgment setting aside the Director's revocation of Respondent's driving privileges. Because we find that the Director established by a preponderance of the evidence that: (1) the authorities had probable cause to arrest the petitioner for driving while intoxicated; and (2) at the time of arrest, the petitioner's blood alcohol content was at least .10 percent, the judgment is reversed, and this matter is remanded for a new trial.
On August 25, 1995, a Morgan County deputy sheriff, officer Bauer, stopped Respondent's automobile for failing to dim his headlights. When officer Bauer approached the vehicle he could smell alcohol, and noticed that Respondent's eyes were bloodshot and that he appeared confused. Respondent told officer Bauer that he drank a few beers at the State Fair. The officer asked Respondent to perform some field sobriety tests. Respondent could not keep his balance during the walk and turn test; he kept putting his foot down on the one-leg stand; and during the horizontal gaze nystagmus test, officer Bauer observed that Respondent had distinct nystagmus at maximum deviation with onset at forty-five degrees. Officer Bauer concluded that Respondent was intoxicated and arrested him. The officer took Respondent into the Morgan County Sheriff's office, and Respondent consented to a breath test. Officer Hammond performed the breath analyzer test. The test result showed that Respondent had a blood alcohol concentration of .17%. The Director sought to suspend or revoke Respondent's driving privileges pursuant to section 302.505, for driving with a blood alcohol concentration in excess of .10%.
On November 6, 1995, Respondent filed a petition for a trial de novo. The trial was held on September 12, 1997. After the evidence was heard, the trial court set aside the Director's action, stating that the Director had failed to comply with its own procedures and regulations. This appeal ensued.
A trial court's judgment in a driver's license suspension or revocation case must be affirmed on review, 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. Barrett v. Director of Revenue, 963 S.W.2d 717, 718 - 19 (Mo. App. 1998).
The Director claims that the trial court erred in setting aside the Director's action pursuant to section 302.505 because it misapplied and misconstrued the law and was against the weight of the evidence because: (1) the evidence showed that the arresting officer had probable cause to arrest Respondent; (2) the Director was not required to prove maintenance of the breath analyzer since Respondent did not object to the testimony that his blood alcohol concentration was .17%; (3) the Director was not required to offer into evidence the printout of the test result; and alternatively, (4) the Director proved that the breath analyzer was properly maintained.
In a driver's license revocation or suspension proceeding, the Director must establish by a preponderance of the evidence that: (1) the authorities had probable cause to arrest the petitioner for driving while intoxicated; and (2) at the time of arrest, the petitioner's blood alcohol content was at least .10 percent. Id.; see Section 302.505.
When circumstances and facts would warrant a person of reasonable caution to believe that an offense has been committed, probable cause exists. Rogers v. Director of Revenue, 947 S.W.2d 475, 477 (Mo. App. 1997). "The determination of whether a police officer has probable cause to make an arrest must be made in relation to circumstances as they appeared to a prudent, cautious, and trained police officer." Id.
Officer Bauer had probable cause to arrest Respondent for driving while intoxicated. Respondent was pulled over for failure to dim his headlights. Officer Bauer could smell alcohol when he approached Respondent's vehicle, and he noticed that Respondent's eyes were bloodshot and that he appeared to be confused. Respondent also told the officer that he drank a few beers at the State Fair. Further, Respondent did not perform well on field sobriety tests administered by the officer. Respondent could not keep his balance during the walk and turn test; he kept putting his foot down on the one-leg stand, and during the horizontal gaze nystagmus test, officer Bauer observed that Respondent had distinct nystagmus at maximum deviation with onset at forty-five degrees. The Director established by a preponderance of the evidence that the officer had probable cause to arrest Respondent for driving while intoxicated. Thus, we now determine whether the Director established by a preponderance of the evidence, that at the time of the arrest, Appellant's blood alcohol content was at least .10%.
"To introduce evidence of the defendant's BAC, the Director must lay a separate foundation...
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