Turrell, v. Missouri Department Of Revenue

• Decision Date: 28 November 2000
• Citation: 32 S.W.3d 655
• Parties: (Mo.App. W.D. 2000) . Ronald Keith Turrell, Respondent, Pro Se, v. Missouri Department of Revenue, Appellant. Case Number: WD57653 Missouri Court of Appeals Western District Handdown Date:
• Court: Missouri Court of Appeals

32 S.W.3d 655 (Mo.App. W.D. 2000)

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.

Ronald Keith Turrell, Respondent, Pro Se, v. Missouri Department of Revenue, Appellant.

Case Number: WD57653

Missouri Court of Appeals Western District

Handdown Date: 11/28/2000

Appeal From: Circuit Court of Platte County, Hon. Gary Dean Witt

Counsel for Appellant: Evan J. Buchheim

Counsel for Respondent: Party Acting Pro Se

Opinion Summary:

Turrell was arrested for driving while intoxicated and administered a breath test that showed a blood alcohol concentration of .163%. The Director of Revenue then suspended Turrell's driving privileges. At trial the Director offered into evidence testimony of the arresting officer concerning Turrell's arrest and to the fact that Turrell's BAC was .163%. Turrell did not object to the Officer's testimony. The Director moved to admit certified records and Turrell objected at that time. The records were admitted over Turrell's objections. Turrell specifically objected to the admission of the records based upon the fact that the serial number of the breathalyzer written on the maintenance report differed by one digit from the serial number of the breath analyzer. The trial court found in favor of Turrell and ordered his license reinstated.

REVERSED.

Division holds: Where evidence of one of the issues in the case is admitted into evidence without objection, the party against whom it is offered waives any objection to the evidence, and it may be properly considered even if the evidence would have been excluded upon a proper objection. Reinert v. Director of Revenue, 894 S.W.2d 162, 164 (Mo. banc 1995). Since the results of the breathalyzer test were admitted without objection, those results were properly before the court and had to be considered in determining whether the Director met his burden of proof. Because there was other evidence in the record that the maintenance check had been satisfactorily done on the breathalyzer machine in question, the trial court's judgment was against the weight of the evidence.

Opinion Author: Ronald R. Holliger, Presiding Judge

Opinion Vote: REVERSED. Breckenridge and Smart, Jr., JJ., concur.

Opinion:

The Director of Revenue ("Director") appeals the judgment setting aside the Director's revocation of Ronald Keith Turrell's ("Turrell") driving privileges for operating a motor vehicle with a blood alcohol concentration of at least .10% by weight. Section 302.505, RSMo. Cum. Supp. 1996.¹ The Director contends that the trial court misinterpreted and misapplied the law and that its judgment in favor of Turrell was against the weight of the evidence. We reverse.

STANDARD OF REVIEW

The trial court's decision will be affirmed unless it is unsupported by substantial evidence or misstates or misapplies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). In hearing a petition for trial, under section 302.535, of a revocation or suspension based on section 302.505, RSMo. Cum. Supp. 1996, the issues before the trial court are: (1) whether the driver was arrested upon probable cause for violating an alcohol-related offense; and (2) whether the driver had been driving with a blood alcohol content of at least .10% by weight. Kienzle v. Director of Revenue, 944 S.W.2d 326, 327 (Mo.App. 1997). We need not defer to the trial court's findings when the evidence is not in conflict. Justice v. Director of Revenue, 890 S.W.2d 728, 731 (Mo.App. 1995). Conversely, if any part of the witness' testimony can be viewed as inaccurate or inconsistent, "the usual rule attends and we give deference to the trial court in its resolution of all witness credibility questions." Endsley v. Director of Revenue, 6 S.W.3d 153, 161 (Mo. App. 1999). Once the Director has presented a prima facie case, the burden shifts to the driver to rebut the Director's prima facie case. Smith v. Director of Revenue, 13 S.W.3d 700, 705 (MoApp. 2000).

FACTS

On November 6, 1999, Missouri Highway Patrol Trooper Michael D. Moats stopped Turrell's vehicle for erratic driving. Trooper Moats observed a strong odor of alcohol on Turrell's breath, that his eyes were bloodshot and that his speech was slurred. The Trooper asked the driver to perform several field sobriety tests all of which he performed poorly. Turell was arrested for driving while intoxicated and taken to a police station where he consented to a breath test. The Trooper notified the Director that the test showed a blood alcohol concentration of .163%. The Director then suspended Turrell's driving privileges.

At the trial de novo the Director offered into evidence the testimony of Trooper Moats and the Department of Revenue Records concerning Turrell's arrest. Turrell did not testify. The Trooper testified, as set forth above, to the facts of the arrest and, without objection, to the Trooper's testimony that Turrell's BAC was .163%. The Director's certified records were admitted over the objection of Turrell. The basis for that objection will be discussed infra.

Probable Cause to Arrest the Driver

We are not favored by a brief from Turrell who appears pro se on the appeal. Nor were there any specific findings requested or made as to the court's reasons for setting aside the Director's action. "Probable cause for arrest exists when an officer possesses facts which would justify a person of reasonable caution to believe that an offense has been or is being committed and that the individual to be arrested has committed it." Wilcox v. Director of Revenue, 842 S.W.2d 240, 242 (Mo.App. 1992). Here the evidence clearly presented probable cause for Trooper Moats to arrest Turrell for driving while intoxicated. No contrary evidence was presented to contradict the Director's prima facie showing on the issue of probable cause.

Did the Director Make a Prima Facie Case of Excessive Blood Alcohol Content?

The trooper testified at trial that the breath test result was .163%. The Director correctly argues that proof of the foundational requirements for admission of a breath test is rendered unnecessary in the absence of an objection. Sellenriek...