Hilkemeyer v. Director of Revenue
2011 Mo. App. LEXIS 1204
| Mo. Ct. App. | 2011Background
- Director suspended Driver Hilkemeyer’s license under § 302.505 after arrest for DWI, based on probable cause.
- Driver filed a petition for trial de novo in circuit court; court ordered Director to restore driving privileges.
- Director appeals, arguing trial court misapplied law: (1) Driver bore burden to prove vomiting/emptying stomach, (2) observation limited to sight.
- Trial featured Missouri State Highway Patrol officer Vogt as sole witness; breathalyzer result was .111% BAC.
- Vogt admitted performing observation while multitasking; portions of the 15-minute observation occurred during transport and data entry.
- Trial court held the 15-minute observation foundation was not adequately established and ordered restoration; judgment issued before White v. Director of Revenue.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did Driver bear burden to prove vomiting or ingestion during the 15-minute observation? | Driver (Director) relied on Vanderpool to require Driver proof to negate results. | Director contends absence of observation evidence alone can affect admissibility. | Point I fails; no burden on Driver under White. |
| Does 'observe' include senses beyond sight and require continuous face-to-face watching? | Director argues observation may be broader than visual observation. | Record shows court did not limit to sight; testimony acknowledged multitasking affected observation. | Point II fails; judgment affirmed. |
Key Cases Cited
- White v. Director of Revenue, 321 S.W.3d 298 (Mo. banc 2010) (overruled Vanderpool's presumption of validity; burden lies with state)
- Vanderpool v. Director of Revenue, 226 S.W.3d 108 (Mo. banc 2007) (breath test foundation requires more than lack of observation)
- Carr v. Director of Revenue, 95 S.W.3d 121 (Mo. App. 2002) (breath test admissibility concerns under 19 CSR 25-30)
- Verdoorn v. Director of Revenue, 119 S.W.3d 543 (Mo. banc 2003) (presumption of validity regarding breath test evidence)
- White v. Director of Revenue, 321 S.W.3d 298 (Mo. banc 2010) (holds burden on state; rejects Vanderpool presumption)