Stuhr v. Director of Revenue, State of Mo., 70957

• Decision Date: 14 March 1989
• Docket Number: No. 70957,70957
• Citation: 766 S.W.2d 446
• Parties: John E. STUHR, Respondent, v. DIRECTOR OF REVENUE, STATE OF MISSOURI, Appellant.
• Court: Missouri Supreme Court

Page 446

766 S.W.2d 446

John E. STUHR, Respondent, v. DIRECTOR OF REVENUE, STATE OF MISSOURI, Appellant.

No. 70957.

Supreme Court of Missouri En Banc.

March 14, 1989.

As Modified April 18, 1989.

William L. Webster, Atty. Gen. and Cynthia B. Green, Sp. Asst. Atty. Gen., Missouri Department of Revenue, Jefferson City, for appellant.

Andrew S. Carroll, Sedalia, for respondent.

PER CURIAM.

The Director of Revenue appeals from a judgment of the Circuit Court of Pettis County entered after a trial de novo reinstating the driving privileges of respondent, John E. Stuhr. The Court of Appeals reversed but did not remand. In so doing, the Court of Appeals failed to provide respondent an opportunity to present his defense. We granted transfer and have jurisdiction. Mo. Const. art. V, § 10. Reversed and remanded.

On December, 1986, Trooper Michael McClain observed a vehicle driven by Stuhr cross the center line twice into the left lane on westbound U.S. 50. Trooper McClain signaled for Stuhr to stop, which he did. The trooper smelled alcohol on Stuhr's breath. He observed that Stuhr's eyes were watery and his words slurred. Two bottles of vodka and a container of grapefruit juice were found inside the vehicle.

Trooper McClain administered three field sobriety tests; the alphabet, the basic heel-to-toe exercise, and the horizontal gaze nystagmus test. Based upon Stuhr's poor performance on these tests, the trooper came to the conclusion that Stuhr was intoxicated and took Stuhr into custody, transporting him back to the Pettis County Sheriff's Department for a breath analysis test. Before the test was given to him, Stuhr was informed of Missouri's implied consent law.

Trooper McClain, who holds a Type III permit issued by the Missouri Department of Health, administered the test to Stuhr using a BAC Verifier. The trooper testified that he completed all of the steps on the checklist except that when he reached step 3B he noticed that the instrument was not displaying the correct time. The trooper went through the test and collected the sample from Stuhr. The tape print-out of the machine indicated that the time was 23:47, which in military time equates to 11:47 p.m. The tape also showed the date as May 20. In actuality the test was run on December 6, 1986, at 2:06 a.m. Other than the incorrect date and time, the trooper did not notice anything unusual regarding the test he gave to Stuhr.

Trooper Lawrence Jefferson testified that as a part of his job he maintains Breathalyzer machines owned by the Highway Patrol and, to that end, he held a Type II-R permit. Specifically, he maintained the BAC Verifier used to test Stuhr. Received into evidence were two maintenance reports made by Trooper Jefferson as a result of two regular maintenance checks conducted on November 30, 1986, and December 13, 1986. On those dates, the machine was functioning properly. He testified that even if the date on a tape printout was inaccurate, the results obtained from the test of an individual would still be accurate as the time and date component is separate from the sample collection portion of the unit. The trooper testified that if the power was turned off, and then turned on again, the time and date would be different from what they actually should be. If something such as a power surge were to affect the machine's ability to properly analyze a sample, then the display board of the instrument would show an error and the machine would not be able to function at all.

In response to a question by the attorney for the Department of Revenue asking Trooper McClain for the result of the breath analysis, the trooper testified that the result was .15 percent. Stuhr's attorney belatedly objected to the questions on the grounds that a proper foundation had not been laid. The court treated this objection as timely and sustained it. No further evidence was presented by the Department of Revenue. Counsel for Stuhr moved to reinstate Stuhr's driving privileges. The court sustained the motion, ruling against the Department of Revenue. It is from this ruling that the Director of Revenue appeals, alleging that the trial court erred in sustaining Stuhr's objection to the testimony of Trooper McClain as to the results of the breath analysis test because a prima facie foundation was made for their admission.

Upon review, the judgment of the trial court 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).

There are two requirements which must be met in order for the suspension of driving privileges by the Department of Revenue to stand. The State had to establish: (1) that the arresting officer had probable cause in making the initial arrest, and (2) that the arrestee had a blood alcohol concentration of thirteen hundredths (.13) of one percent or more as revealed by the chemical analysis. Stewart v. Director of Revenue, 702 S.W.2d 472, 475 (Mo. banc 1986). Although respondent alleges that probable cause is an issue in this case, the argument has little merit. The judgment entry reflects the grounds upon which the case was decided where it reads: "Petitioner's objection to the result of the breath test performed on Petitioner is sustained. At the close of Respondent's evidence, Petitioner's motion to reinstate his driving privilege is sustained." Furthermore, the record reflects that this issue is the one upon which the trial court decides the case:

THE COURT: The question is whether the portion of the checklist, which talks about determining that the time is correct, is an essential part to qualify for the law that I've just stated, what I think the law probably is. And your position, Andy, is that, since the trooper could not determine that the time was right because it wasn't, that that violates the procedure and the result's not admissible. And your position is, and I'll let you put the testimony on, that the time and date didn't affect the operation of the machine.

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THE COURT: In looking at 19 CSR 20-30.060, Sub. 13, it says, "In using the BAC Verifier, observe subject for at least 15 minutes, no smoking or oral intake of any material during this time. If vomiting occurs, start again with the 25-minute observation period." That's essentially No. 1, on the...