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McGough v. Director of Revenue

Court of Appeals of Missouri, Eastern District, First Division

May 26, 2015

DANIEL R. MCGOUGH, Respondent,
v.
DIRECTOR OF REVENUE, STATE OF MISSOURI, Appellant

Appeal from the Circuit Court of St. Charles County. Hon. Matthew Thornhill.

Chris Koster, Jefferson City, MO, for appellant.

John M. Lynch, Clayton, MO, for respondent.

CLIFFORD H. AHRENS, Judge. Lawrence E. Mooney, P.J., concurs. Lisa Van Amburg, J., concurs. MOONEY, P.J., AHRENS, J., AND VAN AMBURG, J. concurring.

OPINION

CLIFFORD H. AHRENS, J.

Page 460

The Director of Revenue of the State of Missouri (" Director" ) appeals from the judgment of the trial court that ordered the Director to remove the administrative-alcohol suspension from Daniel McGough's (" Driver" ) driving record and to reinstate Driver's driving privileges. We reverse and remand.

On October 19, 2012, Officer Scott Weeke of the O'Fallon Police Department responded to the report of a fight at a bar. As Officer Weeke approached the bar, dispatch told him that the parties involved in the fight were leaving the scene in two separate vehicles, a white Dodge Ram and a black Buick. Officer Weeke saw a white Dodge Ram driving through the parking lot of the bar. He turned on the overhead emergency lights on his police car, but the vehicle continued to proceed toward the exit of the parking lot. Officer Weeke then gave two bursts from his air horn and a brief burst from the emergency siren of his police vehicle. The Dodge Ram failed to stop, exited the parking lot, and headed north on Weldon Spring Road. Officer Weeke fully activated the siren and followed the Dodge Ram. The driver of the vehicle did not stop, but rather turned east on Crusher Road and continued east until he reached the intersection with MO K, where he pulled into the lot of a service station and stopped.

Officer Weeke immediately arrested the operator of the Dodge Ram, Driver. Officer Weeke noted that there was a strong smell of alcohol coming from Driver, and that his eyes were watery, bloodshot, glassy, and staring. Driver stated that he had one beer. Officer Weeke told Driver to walk to the rear of the vehicle and lean against the bumper. He observed that Driver swayed as he walked to the back of the vehicle, and almost fell while trying to lean against the bumper of the Dodge Ram.

Officer Weeke arrested Driver for driving while intoxicated and took him to the police station. He informed Driver about Missouri's Implied Consent law. Driver agreed to take a breath test to determine his blood alcohol contenct (" BAC" ). The breath test indicated that Driver had a BAC of 0.172 percent, substantially above the legal limit for intoxication. The breathalyzer used to test Driver was checked on September 29, 2012. Maintenance

Page 461

was performed using a single simulator solution at 0.10 percent, and the maintenance report showed that the breathalyzer was functioning within established parameters.

Director suspended Driver's driving privileges after an administrative hearing. Driver filed a petition for a trial de novo from the administrative suspension of his driving privileges in the Circuit Court of St. Charles County, Missouri on June 10, 2013.

The principal issue at the June 19, 2014 trial was the admission of Director's Exhibit A, which included Officer Weeke's alcohol influence report, the breathalyzer maintenance report, the breathalyzer test result and supporting documents. Driver made an objection to the admission of Exhibit A.[1] The trial court admitted Exhibit A into evidence with the exception of the breathalyzer test result, which it deferred ruling on.

The trial court issued a judgment on July 9, 2014. It found that between the date of Driver's arrest and time of the hearing that the law " positively changed to mandate the breath analyzer be calibrated at three values" and that Director merely presented evidence that a single standard simulator solution was used for a single value, 0.10 percent, and presented no evidence of the use any other standard simulator solutions. The trial court found that Director failed to present sufficient credible evidence of compliance with the state regulations and with § 577.020.3 RSMo (Cum. Supp. 2011) and sustained Driver's " timely objection." [2] The trial court found that Director failed to meet the burden of providing sufficient credible evidence that Driver drove with a BAC at or above 0.08 percent. It specifically did not address the issue of probable cause. The trial court found in ...


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