Director of Revenue (“DOR”) appeals the trial court’s judgment setting aside DOR’s administrative suspension of Julia Erskine’s (“Erskine”)
Facts and Procedural History
On April 14, 2012, Erskine was charged with careless and imprudent driving and operating a motor vehicle while in an intoxicated condition by Officer Brian D. Moore (“Officer Moore”) of the Waynes-ville Police Department.
Events Prior to Trial de Novo
Based upon the facts reported in Officer Moore’s report, DOR administratively suspended Erskine’s driving privileges. On August 27, 2012, Erskine filed a “Petition for Trial De Novo From Administrative Decision” pursuant to sections 302.535.1 and 302.311 in the Circuit Court of Pulaski County. A “Court Trial” was scheduled for October 10, 2012, but was later continued to April 10, 2013.
Trial and Exclusion of Exhibit A
On the day of trial, сounsel for Erskine filed a written “Motion to Strike Exhibit A,” requesting the trial court strike DOR’s “Exhibit A and any evidence stemming from the observations, testimony, notes or recollections of former Waynesville Police Officer Brian Moore.” In support, Ers-kine’s motion stated, in part:
5. Hearsay from witnesses who refuse to testify should be strickеn.
6. Allowing the admission of the alcohol influence report, narrative or any other statement or observation by former officer Brian Moore, аfter [Erskine] tried to subpoena the same, would violate [Erskine]’s due process right under the Missouri and federal constitutions.
7. Admitting the police report, narrative, alcohol influence report, and Datamaster printout ticket in the absence of former Waynesville Officer Brian Moore given that Moоre’s unavailability precludes [Erskine] from cross examining Moore.
At the outset of the trial, DOR proceeded to “submit this [case] on the record under Exhibit A” pursuant to section 302.312. Exhibit A contained DOR’s certified records pursuant to section 302.312, including Erskine’s driver record, DOR’s “Final Order,” Officer Moore’s alcohol influence rеport and supporting documents, as well as the Datamaster Maintenance Report performed by Corporal John Meir on April 3, 2012, witness statements of Deborah Fox and Michael Fox, and a “Pulaski County 911 Call Summary Report” containing details about the report of careless and imprudent driving.
In respоnse, Erskine maintained her objection and requested the trial court strike Exhibit A. Erskine’s counsel pointed the trial court to the Motion to Strike Exhibit A and confirmed counsel was “making a due process objection” to Exhibit A coming into evidence.
After hearing arguments of counsel, the trial court took the motion undеr advisement. On April 11, 2013, the trial court mailed a letter to the parties stating:
I have considered [Erskine]’s Motion to Strike Exhibit A, the cases cited by each of you, additional case law, and the stipulated facts, including the facts that the arresting officer, Brian Moore, is unavailable to testify, despite [Erskine]’s attеmpt to subpoena him.
Based on the reasoning of the Missouri Supreme Court in Doughty v.[DOR], [387 S.W.3d 383 ] (Jan 2013), I sustain [Erskine]’s motion. As the [DOR] presented no further evidence, the [DOR] will be ordered to remove suspension from [Erskine]’s driver’s license аnd record and to reinstate [Erskine]’s driver’s license if [Erskine] is otherwise eligible.
[Erskine’s counsel] shall prepare a formal judgment.
As requested in the trial court’s letter, counsel for Erskine prepared a proposed judgment and the trial court adopted it without modification. The judgment sus
DOR, in its sole point relied on, claims the trial court erred “in excluding and giving no weight to [DOR] ’s Exhibit A[.]” The issue for our determination is whether the trial court erred as a matter of law in striking DOR’s Exhibit A submitted pursuant to section 302.312.
Standard of Review
A trial court’s judgment in a driver’s license suspension and revocation case, as in any other court-tried civil case, will be affirmed unless there is no substantial evidence to support it, it is against the wеight of the evidence, or it erroneously declares or applies the law. White v. Director of Revenue,
Analysis
Section 302.312.1 provides for the admission of DOR records as follows:
Coрies of all papers, documents, and records lawfully deposited or filed in the offices of the department of revenue or the bureau of vital records of the department of health and senior services and copies of any records, properly certified by the approрriate custodian or the director, shall be admissible as evidence in all courts of this state and in all administrative proceedings.
§ 302.312.1. The Supreme Court оf Missouri has examined section 302.312 in Doughty v. Director of Revenue,
‘The General Assembly created this special statutory exception to evidentiary rules otherwise applicable to the contents of [Department of] Revenue records.’ Manzella v. Director of Revenue,363 S.W.3d 393 , 395 (Mo.App. E.D.2012). The legislature’s intention was to eliminate the need for testimony to identify аnd authenticate the records and provide foundation as well as to eliminate best evidence and hearsay challenges. Id.
Id. at 387 (alteration in original).
Missouri courts of appeals have recognized “that [s]ection 302.312 plainly provides that all ‘properly certified’ [DOR] records ‘shall be admissible as evidence in all courts of this state and in аll administrative proceedings.’ ” Krieg v. Dir. of Revenue,
Because we are remanding this case, we nоte the trial court’s judgment both sustained and overruled Erskine’s Motion to Strike Exhibit A. The trial court’s act of overruling the motion was described as an “alternative” ruling. Hоwever, this ruling was in conflict with the judgment’s prior sentence sustaining the motion and, therefore, must be reviewed on remand.
Conclusion
In conclusion, we find the trial court erroneously applied the law and, therefore,
Notes
. Erskine did not submit a brief, nor was she required to do so. West v. Dir. of Revenue,
. All referеnces to statutes are to RSMo 2000, unless otherwise indicated. All rule references are to Missouri Court Rules (2013).
. The judgment entered on May 20, 2013, was later corrected due to a "scrivener error.” The judgment in issue is titled "Amended Judgment and Order” ("judgment”) and is dated June 5, 2013.
. The matter was continued because it was reassigned to аnother judge following Ers-kine's request for change of judge under Rule 51.05. After it was reassigned, the case was set for trial December 12, 2012. The trial was again continued to February 27, 2013, “due to witnesses not available,” and later continued to April 10, 2013.
. DOR also issued a thirty-day suspension under the administrative action, but by the April 10, 2013 trial datе, Erskine had served her administrative suspension.
. We note that some of the documents in Exhibit A were not authored by Officer Moore. For example, the Datаmaster Maintenance Report was authored by Corporal John Meir. In addition, witness statements from Deborah Fox and Michael Fox were also included. These documents were also not authored by Officer Moore.