Whitworth v. Director of Revenue

• Decision Date: 17 October 2006
• Docket Number: No. ED 87115.,ED 87115.
• Citation: 207 S.W.3d 623
• Parties: Patrick L. WHITWORTH, Respondent, v. DIRECTOR OF REVENUE, Appellant.
• Court: Missouri Court of Appeals

Page 623

207 S.W.3d 623

Patrick L. WHITWORTH, Respondent, v. DIRECTOR OF REVENUE, Appellant.

No. ED 87115.

Missouri Court of Appeals, Eastern District, Division Two.

October 17, 2006.

Motion For Rehearing and/or Transfer to Supreme Court Denied December 4, 2006.

Cherly A. Caponegro Nield, Jefferson City, MO, for Appellant.

John F. Newsham, Charles E. Berry, St. Louis, MO, for Respondent.

OPINION

GEORGE W. DRAPER, III, P.J.

The Director of Revenue (hereinafter, "the Director") appeals from the trial court's judgment reinstating the driving privileges of Patrick L. Whitworth (hereinafter, "Driver"). The Director raises one point on appeal claiming the trial court erred in reinstating Driver's license because the Director met its prima facie case. We reverse and remand.

This Court will affirm the trial court's judgment unless there is no substantial evidence to support it, unless the decision is contrary to the weight of the evidence, or unless the trial court erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); Verdoorn v. Director of Revenue, 119 S.W.3d 543, 545 (Mo. banc 2003). We defer to the trial court's determination of credibility. Laney v. Director of Revenue, 144 S.W.3d 350, 352 (Mo.App. S.D.2004). We accept as true all evidence and inferences in favor of the prevailing party and disregard contrary evidence. Hamor v. Director of Revenue, 153 S.W.3d 869, 872 (Mo.App. E.D.2004). "If the evidence is uncontroverted or admitted so that the real issue is a legal one as to the legal effect of the evidence, then there is no need to defer to the trial court's judgment." Hinnah v. Director of Revenue, 77 S.W.3d 616, 620 (Mo. banc 2002).

The facts from the police officer's narrative indicate Driver was stopped in the early morning hours of December 23, 2004, for improper lane usage. After stopping the vehicle and approaching Driver, the police officer stated he detected a strong odor of intoxicants on Driver's breath, his eyes were bloodshot and watery, and his face was flushed. The police officer asked Driver whether he had anything to drink, and Driver responded he had three beers. The officer administered three field sobriety tests which Driver did not successfully complete. After administering a portable breath test which indicated the presence of alcohol, the police officer concluded Driver was intoxicated and arrested him. Driver was taken to the Maryland Heights Police Department where he was advised of his Miranda rights and read Missouri's Implied Consent Law. Driver consented to a breath test. The test result showed Driver's blood alcohol content (hereinafter, "BAC") was .101 percent.

The Director sought to suspend Driver's license pursuant to Section 302.505 RSMo (2003).¹ Driver filed a petition for a trial de novo. At the trial de novo, the Director submitted her case on the record which included the alcohol influence report, the checklist for the Datamaster machine, the evidence ticket, and the maintenance report that includes the police officer's permit information and the certification that the machine was working properly.

Driver objected to the admission of these records on several counts. The pertinent objection at issue in this appeal is to the admission of the evidence ticket, also called the printout, from the breathalyzer machine. The following occurred at the trial:

[Driver's counsel]: "I was also going to object to the evidence ticket itself for the reason that it's not legible. There seems to be certain things marked out and some handwriting put in which object to as perhaps double hearsay, but I'd also object —"

Commissioner: Mine is legible, but it's definitely been changed by someone.

[Driver's counsel]: I would object that there wasn't any proper foundation laid for those changes; that it's not in conformity with the Department of Health regulations.

Commissioner: Any response?

[The Director]: Your Honor, I would just request that you reserve your ruling on that until after petitioner testifies.

Commissioner: Do I know for certain petitioner is going to testify?

[Driver's counsel]: I would think it would depend upon how you'd rule on this I guess.

Commissioner: Whether or not petitioner presents evidence and testifies I'm not certain is relevant as to why this record that you're submitting to the Court has been changed by somebody and I have no evidence before me as to why.

[The Director]: Well, the arrest — I believe — I can only assume that the time was off on the machine given that the time of initial contact in this incident was 12:09 and the time of arrest was 12:16. It looks like the ticket was altered to correctly conform with the times when the machine obviously was not-the clock was off on the machine.

Commissioner: Do you have any witnesses you're going to present to the Court today?

[The Director]: There are no witnesses present, Your Honor.

Commissioner: I am going to sustain your objection to the printout based upon the fact that what has been provided to me is a BAC DataMaster evidence ticket that has been changed, and I have no evidence before me as to why it's been changed. Any other objections?

[Driver's counsel]: No, Judge.

The Director requested a continuance so that she could "present more of our case." The commissioner said she would allow the Director additional time to bring in the police officer to explain the alterations made to the evidence ticket. Driver did not present any evidence.² The Director failed to produce the police officer to testify as a witness or offer any additional evidence as to why the evidence ticket had been altered.

The commissioner issued its order reinstating Driver's license. The commissioner found the arresting officer had probable cause to arrest Driver for driving while intoxicated. However, the commissioner found Driver did not have a BAC of .08% or more by weight. Specifically, the commissioner stated, "Objection to printout sustained in that the copy provided to the court was altered and no testimony was presented to explain the alteration." The commissioner's decision was affirmed by the trial court. The Director appeals.

In her sole point on appeal, the Director alleges the trial court erred in reinstating Driver's license in that the Director presented a prima facie case for suspension. Specifically, the Director argues the evidence ticket from the breathalyzer machine was not required to prove Driver's BAC and that the officer's narrative showed Driver's BAC was .101 percent, well in excess of the legal limit.

Section 302.535.1 provides that a person aggrieved by a decision of the Department of Revenue may seek a trial de novo by the circuit court. At a trial de novo, the Director has the burden of proving a prima facie case for the suspension of a driver's license by a preponderance of the evidence. Neeley v. Director of Revenue, 104 S.W.3d 797, 801 (Mo.App. W.D. 2003). Section 302.535 creates a two-part burden on the Director that is satisfied by showing: (1) the police had probable cause to arrest the driver; and (2) the driver had been driving at a time when his or her BAC was .08 percent or more. Mayridis v. Director of Revenue, 155 S.W.3d 775, 778 (Mo.App. E.D.2005).

The first element, whether the police had probable cause to arrest Driver, is undisputed and not at issue in this appeal. The second element, whether Driver was operating a vehicle at the time when his BAC was .08 percent or higher, is at issue. Driver concedes he was operating the vehicle at the time of his arrest.

Breathalyzer test results are essential to establish a prima facie case under Section 302.505. Orton v. Director of Revenue, 170 S.W.3d 516, 520 (Mo.App. W.D.2005). When using a breathalyzer test to establish a driver's BAC, foundational prerequisites to admission must be met. Bozarth v. Director of Revenue, 168 S.W.3d 78, 82 (Mo.App. E.D.2005). To establish a prima facie foundation for the admission of the results of a breathalyzer test, the Director must establish the test was performed: (1) following the approved techniques and methods of the Department of Health; (2) by an operator holding a valid permit; and (3) on equipment and devices approved by the Department of Health. Coyle v. Director of Revenue, 181 S.W.3d 62, 64 (Mo. banc 2005). In the present case, the Director submitted proof that the machine had been properly calibrated, a copy of the Type II certificate of the officer who administered the test, and a copy of the alcohol influence report indicating the Department of Health procedures were followed when administering the test.

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