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09/14/93 KIMBERLY A. CLEVENGER v. DIRECTOR REVENUE

September 14, 1993

KIMBERLY A. CLEVENGER, RESPONDENT,
v.
DIRECTOR OF REVENUE, APPELLANT.



APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY. The Honorable Charles L. Stitt, Judge

Before Spinden, P.j.; Fenner and Hanna, JJ.

The opinion of the court was delivered by: Per Curiam

PER CURIAM :

The Director of Revenue (director) suspended Kimberly Ann Clevenger's (petitioner) driver's license for driving a motor vehicle while her blood alcohol content was more than 0.10% by weight. §§ 302.500 - .541, RSMo 1986 and Supp. 1992. *fn1 Pursuant to § 302.535.1, RSMo 1986, petitioner filed a petition for a trial de novo in the circuit court. The court reinstated petitioner's license finding that the officer did not have probable cause to stop petitioner's vehicle as required by § 302.505.1.

The director appeals arguing that the trial court erred in reinstating petitioner's license because the evidence showed that the officer observed petitioner operating her vehicle in excess of the speed limit and in an unusual manner. The director also asserts that the court erred in assessing costs against him.

About 3:18 a.m. on August 28, 1992, Sergeant Edward Malloy of the Kansas City, Missouri Police Department stopped petitioner after he observed her vehicle exceeding the posted speed limit on I-70. His testimony at trial described the events preceding the stop as follows:

At that time, I was eastbound on I-70 at the Manchester bridge. In my rearview mirror I could see a car coming up behind me in what appeared to be an excessive speed. And as it approached -- I could see it for approximately 3/4 of a mile, and it began to overtake me, at which time the vehicle hit its brakes and almost went into a skid right next to my police car and reduced its speed to about the same speed I was traveling. At that time I pulled the vehicle over.

Sergeant Malloy testified that he was traveling 55 miles per hour when he saw petitioner approach him. Sergeant Malloy contacted Officer Dawn DeSmet on the radio to complete the arrest and reports.

The following details come from the police reports which were placed in evidence as a part of the certified copy of records from the Department of Revenue file. In the Alcohol Influence Report, *fn2 Officer DeSmet reported that on August 28, 1992, she was dispatched to I-70 and Manchester to meet Sergeant Malloy on a traffic violation. Officer DeSmet administered several field sobriety tests, which petitioner failed. Officer DeSmet arrested petitioner for speeding and driving while intoxicated, and transported her to the police station. The Missouri Uniform Traffic tickets issued to petitioner *fn3 stated that the offenses occurred in Kansas City, Missouri, at or near I-70 and Manchester.

Officer DeSmet informed petitioner of her Miranda *fn4 rights, and of her rights under the Implied Consent Act, § 577.041. Officer DeSmet, whom petitioner agreed holds the appropriate permits, administered a breathalyzer test to petitioner. The test showed that at 4:07 a.m., August 28, 1992, petitioner had a blood alcohol content of .155%. The petitioner presented no evidence at trial. The court reinstated petitioner's driver's license and assessed costs against the director.

Petitioner maintains that the director had failed to prove that Sergeant Malloy had probable cause to stop petitioner because there was no evidence of the speed limit at that location. The petitioner does not contest the evidence that she was driving faster than 55 miles per hour. The director responded that he need only show probable cause for the stop, not prove the actual criminal violation. The probable cause, according to the director, consisted of his observation of the petitioner operating her vehicle in excess of the posted speed limit and in an unusual manner.

The director appeals on two points, the second being that the trial court erred in assessing costs against him under § 536.087.1. Petitioner does not contest this point. While the prevailing party may be awarded costs in a civil action arising from a state agency proceeding, driver's license proceedings are specifically excluded under § 536.085(1). We reverse the award of costs against the director.

In his first point, the issue is whether the officer had probable cause to make the initial stop of petitioner's vehicle. The trial court's decision must 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) ; Kimber v. Director of Revenue, 817 S.W.2d 627, 629-30 (Mo. App. 1991). It is the director who bears the burden of proof in a trial de novo of an administrative suspension. § 302.535.1, RSMo 1986. The director must produce evidence that the officer had probable cause to make the arrest, and that petitioner was driving with a blood alcohol content of greater than 0.10% by weight. Aron v. Director of Revenue, 737 S.W.2d 718, 719 (Mo. banc 1987). Petitioner's blood alcohol content is not disputed.

The trial court believed Sergeant Malloy's testimony, but did not believe that the testimony was sufficient to establish probable cause for the stop. Specifically, Sergeant Malloy testified that he was traveling on I-70 at 55 miles per hour, which was the posted speed limit, when petitioner overtook his car at an excessive rate of speed. As the petitioner's vehicle began to overtake him, she applied her brakes such that the car almost went into a skid, which reduced her speed to about the same as the officer's vehicle. We need not decide whether these facts alone are sufficient to establish probable cause for the stop. The Department of Revenue's file, admitted into evidence without objection, places petitioner on ...


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