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08/17/93 RICKY R. HADLOCK v. DIRECTOR REVENUE

August 17, 1993

RICKY R. HADLOCK, APPELLANT,
v.
DIRECTOR OF REVENUE, STATE OF MISSOURI, RESPONDENT.



APPEAL FROM THE CIRCUIT COURT OF PLATTE COUNTY. The Honorable Ward B. Stuckey, Judge

En Banc. Price, Jr., Covington, Holstein, Thomas, Limbaugh, Robertson, Smith

The opinion of the court was delivered by: Price

The circuit court suspended appellant's driving privilege pursuant to the provisions of the Administrative D.W.I. Law, §§ 302.505 - 302.540, RSMo 1986. *fn1 The evidence consisted solely of the records of respondent. Respondent's file contained a police report made by the arresting officer, a printout of the breath analysis results and a form completed by the chemical test operator. Despite appellant's hearsay and foundation objections, the reports were admitted into evidence pursuant to § 302.312, RSMo Supp. 1992, which permits "copies" of respondent's files certified by the custodian to be admitted into evidence in "the same manner and with like effect as the originals."

The crux of this case is whether respondent's file is admissible without supporting foundation testimony. Resolution of this issue necessarily requires an examination of the specific language of § 302.312. We have jurisdiction pursuant to Mo. Const. art. V, § 10, and reverse the decision of the circuit court.

I

Appellant Ricky R. Hadlock was observed driving 55 m.p.h. in a 35 m.p.h. zone on April 10, 1991, at approximately 1:10 a.m. He was stopped by Officer Nelson Burgen, who noted a strong odor of intoxicants on or about appellant's person. Hadlock was then given field sobriety tests, arrested at approximately 1:20 a.m., and transported to the Riverside Police Department where he submitted to a breath analysis test. The test was conducted by James D. Baughman with an Alco-Analyzer 2000. A form completed by Baughman indicates that Baughman explained to appellant his rights under the implied consent law at approximately 1:51 a.m. The form further indicates that this explanation occurred prior to the administration of the test.

The printout of the chemical test results attached to the form, however, indicates that the chemical analysis began at "0101:50" or approximately 1:02 a.m. Thus, the printout is inconsistent with the time that the implied consent information was given, and with the time that appellant was initially stopped by the arresting officer.

Baughman also completed another checklist regarding the test, which included "box 7." Box 7 states:

7. After printout, tear off chromatogram and fill in name of operator and subject. Attach printout to this report.

This box was checked, and Baughman certified that "there was no deviation from the procedure approved by the department." The name of the subject of the printout submitted with respondent's records, however, was not indicated on the printout. The printout states that the blood alcohol content of the subject was .158 percent.

Section 302.505 provides for an administrative suspension of driving privileges when the Department determines that a person was arrested upon probable cause to believe the person was driving with a blood alcohol concentration equal to or greater than .13 percent. *fn2 This type of administrative suspension is completely independent from an adjudication of any criminal charges arising out of the same occurrence under Chapter 577. The determination is based upon a report made by a law enforcement officer as required in § 302.510. The determination is final unless a hearing is requested and held. § 302.505.2. In this case, appellant requested a hearing, and the initial suspension was upheld.

Appellant then filed an application for a trial de novo in circuit court, pursuant to § 302.311. At trial, respondent proved its case solely by the introduction of the printout and reports of the arresting officer and the chemical test operator. These records, without any additional foundation evidence, were offered and received into evidence pursuant to § 302.312, RSMo 1992, as documents lawfully filed with the Department of Revenue and certified by the custodian. The circuit court then found that appellant's driving privilege was subject to suspension.

II

Before a document may be received in evidence, it must meet a number of foundational requirements including: relevancy, authentication, the best evidence rule, and hearsay. With the possible exception of relevancy, a statute may eliminate one or more of these obstacles with regard to a particular document. *fn3 We must determine whether the records admitted in ...


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