Harmon Duckworth, Respondent, v. Director of Revenue, State of Missouri, Appellant.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Eastern District Case Style: Harmon Duckworth, Respondent, v. Director of Revenue, State of Missouri, Appellant. Case Number: ED75562 Handdown Date: 11/23/1999 Appeal From: Circuit Court of Cape Girardeau County, Hon. John W. Grimm Counsel for Appellant: Evan J. Buchheim Counsel for Respondent: David J. Roth, II Opinion Summary: Director of Revenue (Director) appeals from the trial court's judgment reinstating the driving privileges of Harmon W. Duckworth (Driver) which Director had suspended following Driver's arrest for driving while intoxicated. REVERSED AND REMANDED WITH INSTRUCTIONS. Southern Division holds: The trial court erred in setting aside the suspension of Driver's driving privileges in that Director complied with the methods of testing for blood alcohol as required by the Department of Health, and the record does not indicate Driver had an opportunity to present evidence. Citation: Opinion Author: Honorable Mary K. Hoff Opinion Vote: REVERSED AND REMANDED WITH INSTRUCTIONS. R. Dowd, P.J. and Teitelman, J., concur. Opinion: The Director of Revenue (Director) appeals from the trial court's judgment reinstating the driving privileges of Harmon W. Duckworth (Driver) which Director had suspended following Driver's arrest for driving while intoxicated. We reverse and remand. On February 18, 1997, police stopped Driver's vehicle and performed field sobriety tests after smelling alcohol on

Driver's breath. After poor performance on the field sobriety tests, police concluded Driver was intoxicated. Officer arrested Driver and took him to the police station. Driver then consented to a breath test. The result showed Driver had a blood alcohol concentration of .188%. Director suspended Driver's driving privileges, pursuant to Section 302.505 RSMo Supp. 1996, for driving with a blood alcohol concentration of at least .10%. Driver requested a trial de novo. At that trial on August 6, 1998, Driver objected to admission of the breath test result because the certificate of analysis did not comply with the version of 19 CSR 25-30.051 in effect at the time of Driver's arrest and the emergency version of 19 CSR 25-30.051 in effect on the date of trial (emergency version) was not applicable. The trial court held the emergency version did not retroactively apply to this situation because it was not purely procedural and the Department of Health did not have authority to promulgate emergency rules. The trial court applied the version of 19 CSR 25-30.051 that was in effect at the time of Driver's arrest, found the certificate of analysis did not comply with that regulation, concluded Director had not satisfied his burden of proof, and entered judgment in favor of Driver. This appeal followed. On appeal, Director argues the trial court erred because it misinterpreted and misapplied the law in that the arresting officer had probable cause to arrest Driver for driving while intoxicated and Driver's blood alcohol exceeded .10%. Specifically, Director argues the trial court erred in finding Driver did not have a blood alcohol content of at least .10% because Director laid a proper foundation for the admission of the breath test result. Director claims the emergency version determines the validity of the breath analyzer's maintenance report, and contends the trial court erred in comparing the content of the certificate of analysis to an earlier version of 19 CSR 25-30.051 that was no longer in effect at the time of trial. Director argues the emergency version should be applied retroactively because this Court has held it is purely procedural. Finally, Director contends the Department of Health had statutory authority to promulgate the emergency version. The trial court's judgment will 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). To suspend Driver's driving privileges, Director has the burden of proving by a preponderance of the evidence that the arresting officer had probable cause to arrest the driver for driving while intoxicated and further that the driver's blood alcohol concentration was .10% or more by weight. Meurer v. Director of Revenue, 984 S.W.2d 873, 875 (Mo. App. E.D. 1999). An arresting officer has probable cause to arrest a driver when circumstances and facts exist which would warrant a person of reasonable caution to believe an offense has been committed. Guccione v. Director of Revenue, 988 S.W.2d

649, 654 (Mo. App. E.D. 1999). The determination of whether a police officer has probable cause to arrest "must be made in relation to circumstances as they appeared to a prudent, cautious, and trained police officer." Id. Here, the record shows the following: The officer saw Driver's car swerve several times and cross the center line twice. The arresting officer smelled alcohol on Driver's breath. After performing field sobriety tests, officer concluded Driver was intoxicated and indicated the bases for that determination on an Alcohol Influence Report. The record establishes that Director satisfied its prima facie burden of showing the arresting officer had probable cause to arrest Driver. In addition, the issue focusing on the application of 19 CSR 25-30.051 in this case is identical to the issue addressed in our decision in Blechle v. Director of Revenue handed down simultaneously with this case. As in Blechle, we find that the certificate of analysis introduced at the trial de novo complies with the requirements of the emergency version of 19 CSR 25-30.051 in effect on that date. The terms of the emergency version do not even require a certificate of analysis. The record does not indicate, however, that Driver had an opportunity to present evidence. Under the circumstances we remand for further proceedings. See Hackmann v. Director of Revenue, 991 S.W.2d 751, 753 (Mo. App. E.D. 1999). Reversed and remanded for further proceedings consistent with this opinion. Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.