989 S.W.2d 688 | Mo. Ct. App. | 1999
The Director of Revenue (“Director”) appeals the circuit court’s judgment of June 10, 1998, restoring the driving privileges of Mitchell Lynn McDaniel (“Driver”) after they had previously been suspended under the provisions of section 302.505.1.
The judgment of the trial court will be affirmed unless there is no substantial evidence to support it, unless it is against the weight of the evidence, or unless the trial court erroneously declares or applies the law. Kienzle v. Director of Revenue, 944 S.W.2d 326, 327 (Mo.App.1997). In reviewing a revocation or suspension under section 302.505, the trial court must determine the following: (1) whether the driver was arrested upon probable cause for violating an alcohol-related offense; and (2) whether the driver had been driving with a blood alcohol content of at least .10% by weight. Id. Both of these elements must be proved by a preponderance of the evidence. Tebow v. Director of Revenue, 921 S.W.2d 110, 113 (Mo.App.1996).
The record before us primarily embodies certified copies of records of the Department of Revenue, received into evidence as business records, consisting of Driver’s “traffic tickets, the alcohol influence report [containing an attached printout of a breath analysis indicating that at 5:38 p.m. on June 7, 1997 that driver’s blood alcohol content was .189%], the maintenance report on the BAC Verifier, with attached printouts, a certificate of analysis and notice of suspension....”
In the alcohol influence report, the arresting officer described the incident that is the impetus for this case as follows:
On 6-7-97 I was patroling (sic) when I was dispatched to an accident ... and the driver was possibly intoxicated. When I arrived I spoke to the owner of the parked car and then Mitchell L. McDaniel the driver of the pick-up that struck the parked car. I got McDaniel’s information and noticed the smell of intoxicants. I asked if he had been drinking and he stated yes, 1 or 2 earlier. I then had McDaniel perform field sobriety tests and he did poorly on tests given. I then placed him under arrest for driving while intoxicated. I then transported him to the Police Dept, where I read him implied consent. McDaniel agreed to take the Breathalyzer test. McDaniel checked a .189% BAC so he was then charged with DWI....
The officer recorded his time of arrival at the accident as 5:09 p.m. and recorded the time of the accident as 5:05 p.m. which, we must assume, was an estimate.
In its judgment, the trial court cited Leach v. Director of Revenue, 705 S.W.2d 125 (Mo.App.1986), as creating a requirement that the Director present “live witnesses” when a “contest as to the factual basis for arrest” is injected by Driver. Id. at 127. We determine, however, that the trial court’s reading of Leach is incorrect.
In Leach, the trial court was faced with a copy of the arresting officer’s report that did not bear “a legible notarial seal.” Id. at 126. Because of this infirmity, the
Here, with the exception of an objection relating to the notarization of the arresting officer’s verified report, Driver made no objection to the sufficiency of the information contained within the custodian’s affidavit. Additionally, as in Tebow, the Director laid a sufficient foundation by submitting the affidavit of the custodian of the records of the Drivers License Bureau of the Department of Revenue. See Tebow, 921 S.W.2d at 113.
In the case before us, Driver presented no evidence and refused to testify,
“Deference to the trial court’s findings is not required when the evidence is uncontroverted and the case is virtually one of admitting the facts or when the evidence is not in conflict.” Fischer v. Director of Revenue, 928 S.W.2d 424, 425-26 (Mo.App.1996). The evidence established that Driver was arrested upon probable cause that he was driving in violation of an alcohol related offense and that he had been driving at a time when his blood concentration was at least .10 percent by weight. See Thebeau, 945 S.W.2d at 676; Kienzle, 944 S.W.2d at 328; Helton, 944 S.W.2d at 310. Under the facts of this case, the trial court erred as a matter of law in determining that the Director failed to prove her case in the absence of the testimony of the arresting officer. Its judgment is not supported by the evidence and is against the weight of the evidence.
The judgment of the trial court is reversed. The case is remanded to the trial court with directions to enter a judgment ' reinstating the suspension of Driver’s driving privileges.
. All statutory references are to RSMo Cum. Supp.1996, unless otherwise indicated.
. Driver has filed no brief. “While there is no penalty prescribed for the failure to file a brief, we are required to decide the case without the benefit of that party’s authorities and points of view.” Fitzgerald v. Director of Revenue, 922 S.W.2d 478, 479 n. 3 (Mo.App.1996).
.The trial court overruled Driver's objection to the receipt into evidence of the alcohol influence report on the basis of improper notarization. Other than the date on the report, there was no evidence to suggest that the arresting officer had
. In light of the evidence that the officer responded to a dispatch, we find that the exact timing of the accident is of no moment. “There is nothing in the statutes or case law requiring Director to prove the time of an accident.” Haas v. Director of Revenue, 975 S.W.2d 483, 485 (Mo.App.1998). Further, there was no evidence presented that Driver consumed any alcohol subsequent to the accident.
. See Young v. Director of Revenue, 835 S.W.2d 332, 335 (Mo.App.1992)(a court that favors the form or content of the official reports over witness testimony on the trial de novo so as to preclude evidence from the arresting officer ... invites error); Lawrence v. Director of Revenue, 863 S.W.2d 10, 12 (Mo.App.1993); see also Brussel v. Director of Revenue, 962 S.W.2d 454, 457 (Mo.App.1998).
. Section 490.680, RSMo 1994 provides that:
A record of an act, condition or event, shall insofar as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business, at or near the time of the act, condition or event, and if, in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission.
Here, inter alia, the affidavit of the custodian of records for the Missouri Department of Revenue, Driver's License Bureau, dated February 23, 1998, showed that the records in question were kept by the Driver’s License Bureau “in the regular course of business" and that the "record[s] [were] made at or near the time of the act, event[,] condition, opinion or diagnosis” by a "representative of said Department” with “knowledge of the act, event, condition, or diagnosis _" The custodian further certified, pursuant to section 302.312, that the records attached were “exact duplicates of the original records lawfully filed or deposited with the Department of Revenue, by the reporting agency or entity, pursuant to the provisions of Chapter 302, 303 and/or 577, RSMo.”
.However, it is important to note that submitting a case on records alone, though not prohibited, is not without risk. "[B]y relying solely on the records themselves Director would be unable to explain any discrepancies that may exist within them.” Cannon, 895 S.W.2d at 306. Additionally, a document must still be relevant to an issue in the case before it may be received into evidence, and the admissibility of business records remains a discretionary determination of the trustworthiness of the records. Id. Lastly, "Director retains the initial burden of proof to support the license suspension when the cause is tried de novo before the circuit court [and] ... if the court finds that one of the requisite elements has not been proven by the records themselves. Director has failed to meet her burden and the suspension will be reversed.” Id.