Mark A. Verdoorn, Respondent v. Director of Revenue, Appellant.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Western District Case Style: Mark A. Verdoorn, Respondent v. Director of Revenue, Appellant. Case Number: WD60784 Handdown Date: 11/05/2002 Appeal From: Circuit Court of Platte County, Hon. Gary D. Witt Counsel for Appellant: Todd Jones Counsel for Respondent: James D. Boggs Opinion Summary: The director of revenue suspended the driver's license of Mark Verdoorn for driving while intoxicated. He sought review in the circuit court, which reinstated his driving privileges. The court held that the director failed to carry her burden of persuasion after Verdoorn rebutted the prima facie evidence of his legal intoxication. The director seeks reversal of the reinstatement, claiming Verdoorn failed to rebut the director's prima facia case with a "preponderance of the evidence" showing that his blood alcohol concentration was below the legal limit of .10 percent. REVERSED. Division Four holds: Despite recent appellate decisions applying a preponderance of evidence standard to the driver's rebuttal evidence, this standard is incompatible with the requirement in section 302.535.1 that the director has the burden of proof in driver's license suspension and revocation cases. The decision in this case clarifies the law with regard to the director's burden of persuasion and the driver's burden of production in trial de novo proceedings under section 302.535. Overruling Anderson v. Dir. of Revenue, 944 S.W.2d 222, 224 (Mo.App. W.D. 1997) and all Western District cases that followed Anderson, we hold that once the director makes a prima facie showing of probable cause and intoxication, the driver is entitled to present rebuttal evidence that raises a genuine issue of fact regarding the validity of the blood alcohol test results. The rebuttal evidence must be substantial and competent to challenge the presumption of

validity established by the director's prima facie case. The driver's burden is one of production, as the director must retain the burden of proof throughout the proceeding. In this case, Verdoorn presented a "metabolic curve defense" through an expert who testified that it was "equally likely" that Verdoorn's blood alcohol concentration was above or below .10 percent at the time he was stopped. This testimony did not establish that Verdoorn's blood alcohol concentration was in fact below the legal limit and therefore did not constitute substantial evidence to rebut the director's prima facia case. The judgment of the circuit court is reversed. Citation: Opinion Author: Lisa White Hardwick, Judge Opinion Vote: REVERSED. Ellis, C.J., and Howard, concur. Opinion: This appeal arises from the circuit court's judgment reinstating Mark Verdoorn's driving privileges following the suspension of his license by the Director of Revenue for driving while intoxicated. The Director seeks reversal of the reinstatement, claiming Verdoorn failed to rebut the Director's prima facia case with a "preponderance of the evidence" showing that his blood alcohol concentration was below the legal limit of .10%. We hold that the preponderance standard is inapplicable to rebuttal evidence in driver's license suspension cases. Nevertheless, we reverse the reinstatement because Verdoorn's rebuttal evidence was insufficient to overcome the Director's prima facie evidence that he drove while intoxicated. Factual and Procedural Background At approximately 1:40 a.m. on March 29, 2001, Platte County Deputy Brian Cowan pulled over a vehicle when he noticed it swerving on Interstate 29. Upon approaching the vehicle, Deputy Cowan detected the odor of alcohol on the driver, Mark Verdoorn, and observed that Verdoorn's eyes were bloodshot and watery. Verdoorn admitted he had had a couple of beers. Deputy Cowan administered three field sobriety tests, all of which Verdoorn failed. Verdoorn was arrested for driving while intoxicated. At approximately 2:40 a.m., Deputy Cowan administered a breath test, which showed Verdoorn's blood alcohol concentration was .126%. The Director thereafter suspended Verdoorn's driver's license pursuant to section 302.505.1 RSMo 2000,(FN1) because his blood alcohol level exceeded the legal limit of .10%.(FN2)

Verdoorn filed a Petition for Trial De Novo, upon which the circuit court heard evidence on October 18, 2001. The Director presented evidence to establish that Deputy Cowan had probable cause to believe Verdoorn was driving while intoxicated and that Verdoorn's blood alcohol content exceeded .10%. To rebut the Director's case, Verdoorn presented a "metabolic curve" defense supported by the deposition testimony of Dr. William Watson, an expert witness on toxicology and pharmacology. The expert made an assessment of Verdoorn's blood alcohol content in light of undisputed facts showing Verdoorn started drinking at approximately 1:15 a.m. and drank as rapidly as one beer every five minutes up until the time his vehicle was stopped by Deputy Cowan at approximately 1:40 a.m. Based on the nature and timing of this "binge drinking," Dr. Watson testified "to a reasonable degree of toxicological certainty" that Verdoorn's blood alcohol content was "lower than .126 grams percent and, in fact, could have been either above or below .10 grams percent" at the time he was stopped by Deputy Cowan. Upon further questioning, Dr. Watson testified it was "equally likely [Verdoorn's blood alcohol content] was above or below" the legal limit of .10%. The Director objected to the expert's deposition testimony as "immaterial, irrelevant, and based on vast speculation of certain crucial variables." The court overruled the objection and admitted the deposition testimony. The Director presented no additional evidence but argued, in closing, that Verdoorn "did not meet his burden." After taking the matter under advisement, the circuit court entered judgment reinstating Verdoorn's driver's license on October 31, 2001. The court made the following findings and conclusions relevant to this appeal: The parties have stipulated that it would be the testimony of [Verdoorn] that he engaged in binge drinking for a period of time immediately prior to 1:30 A.M. when the bar where he was drinking closed and then continued to drink alcohol while driving his vehicle until the time he was stopped by the arresting officer. It was [Dr. Watson's] undisputed testimony that if Verdoorn engaged in binge drinking immediately prior to 1:30 A.M. and then continued to drink until the time that he was stopped, that it would be his opinion, to a reasonable scientific and toxicological certainty, that there would be a fifty percent probability that his blood alcohol concentration was in excess of 0.10 grams and a fifty percent probability that his blood alcohol concentration would be lower than that amount. In summary, [Dr. Watson] testified that it was equally probable that [Verdoorn's] blood alcohol concentration was either above or below the .10 standard. Based upon the testimony of Dr. Watson, the [Director] has failed in meeting its burden of persuasion that [Verdoorn] had a BAC greater than .10 percent at the time of his driving and, accordingly, the Petition for Trial De Novo should be sustained. Point on Appeal The Director's sole point on appeal is that the circuit court erred in granting the license reinstatement because Verdoorn failed to adequately rebut the evidence that he drove while intoxicated. The Director argues she presented a

prima facie case to support the license suspension, which Verdoorn could only rebut with a "preponderance of the evidence" showing that his blood alcohol content was less than .10%. Andersen v. Dir. of Revenue, 944 S.W.2d 222, 224 (Mo.App. W.D. 1997). Based on this preponderance standard, the Director cites several recent cases in which an expert's testimony that a driver's blood alcohol content "may have been" below the legal limit was held insufficient to rebut a prima facie case for suspension. Green v. Dir. of Revenue, 961 S.W.2d 936, 938-939 (Mo.App. E.D. 1998); Meyer v. Dir. of Revenue, 34 S.W.3d 230, 235-236 (Mo.App. E.D. 2000); Rhodes v. Dir. of Revenue, 994 S.W.2d 597, 601-02 (Mo.App. S.D. 1999); Hamm v. Dir. of Revenue, 20 S.W.3d 924, 927 (Mo.App. S.D. 2000). The Director contends Verdoorn's rebuttal evidence fell short of the preponderance standard because his expert testified it was "equally likely" that Verdoorn's blood alcohol content was "above or below" the legal limit. Thus, the Director claims the circuit court's judgment of reinstatement was against the weight of the evidence and an erroneous application of the law, in that the court did not require Verdoorn to rebut the Director's prima facie case by a preponderance of the evidence. We must affirm the circuit court's judgment reinstating Verdoorn's driver's license unless it is unsupported by the evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Wellner v. Dir. of Revenue, 949 S.W.2d 683, 684 (Mo.App. W.D. 1997). We view the evidence in a light most favorable to the judgment, giving deference to the trial court's factual determinations. Hawk v. Dir. of Revenue, 943 S.W.2d 18, 20 (Mo.App. S.D. 1997). "If the evidence is uncontroverted or admitted, so that the real issue is a legal one as to the legal effect of the evidence, then we need not defer to the trial court's judgment." Hampton v. Dir. of Revenue, 22 S.W.3d 217, 220 (Mo.App. W.D. 2000). Statutory Framework Section 302.505.1 permits the Department of Revenue to suspend or revoke the driver's license of any person arrested upon probable cause of driving while intoxicated. An aggrieved driver can seek a trial de novo at which the circuit court must determine whether the suspension or revocation is supported by evidence that: (1) the driver was arrested upon probable cause for violating an alcohol-related offense; and (2) the driver's blood alcohol concentration exceeded the legal limit of .10%. section 302.535.1; Turrell v. Mo. Dep't. of Revenue, 32 S.W.3d 655, 657 (Mo. App. W.D. 2000). The "burden of proof " is on the Director of Revenue to establish grounds for the suspension or revocation by a preponderance of the evidence. section 302.535.1; Miller v. Dir. of Revenue, 719 S.W.2d 787, 789 (Mo.banc 1986). Applying this statutory scheme, Missouri courts have consistently held the Director must initially present evidence to establish probable cause for the arrest and the driver's blood alcohol level of .10 % or greater. Stuhr v. Dir. of

Revenue, 766 S.W.2d 446, 448 (Mo.banc 1989); Testerman v. Dir. of Revenue, 31 S.W.3d 473, 475 (Mo.App. W.D. 2000); Green, 961 S.W.2d at 938; Rhodes, 994 S.W.2d at 598. This evidence creates a presumption that the driver was intoxicated. The driver is then entitled to rebut the Director's prima facie case with evidence that his blood alcohol content did not exceed the legal limit. Stuhr, 766 S.W.2d at 449-50 (driver "should be given opportunity to present his defense"); Barrett v. Dir. of Revenue, 963 S.W.2d 717, 719 (Mo.App. W.D. 1998). Ultimately, the circuit court must determine whether the Director has met the burden of proving by a preponderance of the evidence that the driver drove while legally intoxicated. Collins v. Dir. of Revenue, 691 S.W.2d 246, 252 (Mo.banc 1985). There is no dispute in the instant case that the Director presented prima facie evidence in support of the suspension. The issue on appeal addresses the quantum of evidence necessary for the driver to rebut the Director's case. The Director argues once she made a prima facie showing, the burden shifted to Verdoorn to prove by a preponderance of evidence that his blood alcohol content was lower than .10 %. We recognize that this preponderance standard for rebuttal evidence is referenced in several recent cases cited by the Director. See e.g. Andersen, 944 S.W.2d at 224; Green, 961 S.W.2d at 938. Yet, the application of this standard appears contrary to the plain language of section 302.535.1, which places the burden solely on the Director to prove by a preponderance of the evidence that the driver was intoxicated. The trial de novo statute establishing the Director's burden of proof was enacted in 1983. None of the appellate cases decided under this statute from 1983 through 1996 required the shifting of this ultimate burden to the driver once the Director presents a prima facie case. See e.g. Hieger v. Dir. of Revenue, 733 S.W.2d 491, 492-93 (Mo.App. E.D. 1987). The decisions issued prior to 1997 consistently reflect that, in rebutting the Director's case, the driver's defense should consist of "some evidence" that the blood alcohol test results were invalid or unreliable. Walker v. Dir. of Revenue, 922 S.W.2d 57, 58 (Mo.App. E.D. 1996); see also Stuhr, 766 S.W.2d at 449-50. Under this line of cases, a Director's prima facie case shifted the burden of production to the driver to adduce evidence that his blood alcohol level did not exceed the legal limit. The burden of persuasion, however, remained on the Director at all times. See Miller, 719 S.W.2d at 789; Collins, 691 S.W.2d at 252. The first case to state that the driver must rebut the Director's case by a preponderance of evidence was Andersen v. Dir. of Revenue, 944 S.W.2d at 224, decided by our court in 1997. In Andersen, we reversed the circuit court's finding that the Director failed to present a prima facie case of driving while intoxicated. Id. The case was remanded with instructions that if the Director makes a prima facie case, "the circuit court shall place the burden on Anderson to establish by a preponderance of the evidence that his BAC was less than .10%..." Id. The decision cites no

statutory or precedential authority for shifting the burden of proof to the driver,(FN3) but many of the cases decided since Andersen have similarly applied the preponderance standard in assessing the sufficiency of rebuttal evidence. See Green, 961 S.W.2d at 938; Rhodes, 994 S.W. 2d at 599. We believe this is an incorrect application of section 302.505.1 and 302.535.1. Our decision in this case clarifies and overrules the evidentiary rebuttal standard misstated in Andersen's remand instructions and the Western District cases which followed Andersen in this regard.(FN4) See Milligan v. Wilson, 2002 WL 1049387 p.3 (Mo. App. W.D. 2002); Weiland v. Dir. of Revenue, 73 S.W.3d 60, 62 (Mo. App. W.D. 2002); Bain v. Wilson, 69 S.W.3d 117, 120 (Mo. App. W.D. 2002); Testerman, 31 S.W.3d at 475-76; Reynolds v. Dir. of Revenue, 20 S.W.3d 571, 574 (Mo. App. W.D. 2000); Lasley v. Dir. of Revenue, 17 S.W.3d 174, 176 (Mo. App. W.D. 2000); Smith v. Dir. of Revenue, 13 S.W.3d 700, 705 (Mo. App. W.D. 2000); Douglass v. Wilson, 10 S.W.3d 199, 202-03 (Mo. App. W.D. 2000); Endsley v. Dir. of Revenue, 6 S.W.3d 153, 158 (Mo. App. W.D. 1999); Barrett v. Dir. of Revenue, 963 S.W.2d 717, 719 (Mo. App. W.D. 1998). To the extent other appeals court decisions outside the Western District have followed Andersen and, therefore, conflict with our holding herein, we decline to follow those decisions. See Francis v. Dir. of Revenue, 2002 WL 1543575 p.2 (Mo. App. E.D. 2002); Kennedy v. Dir. of Revenue, 73 S.W.3d 85, 87 (Mo. App. S.D. 2002); McCoy v. Dir. of Revenue, 71 S.W.3d 688, 690 (Mo. App. S.D. 2002); Duing v. Dir. of Revenue, 59 S.W.3d 537, 539 (Mo. App. E.D. 2001); Smyth v. Dir. of Revenue, 57 S.W.3d 927, 930 (Mo. App. S.D. 2001); Smith v. Dir. of Revenue, 56 S.W.3d 464, 467 (Mo. App. S.D. 2001); Daniels v. Dir. of Revenue, 48 S.W.3d 42, 44 (Mo. App. S.D. 2001); Phelps v. Dir. of Revenue, 47 S.W.3d 395, 399 (Mo. App. E.D. 2001); Hollingshead v. Dir. of Revenue, 36 S.W.3d 443, 446 (Mo. App. E.D. 2001); Booth v. Dir. of Revenue, 34 S.W.3d 221, 223 (Mo. App. E.D. 2000); Meyer, 34 S.W.3d at 233; Riggin v. Dir. of Revenue, 25 S.W.3d 695, 697-98 (Mo. App. S.D. 2000); Hansen v. Dir. of Revenue, 22 S.W.3d 770, 773 (Mo.App. E.D. 2000); Kobayshi v. Dir. of Revenue, 22 S.W.3d 247, 249 (Mo. App. E.D. 2000); Hamm, 20 S.W.3d at 926; Wilcutt v. Dir. of Revenue, 18 S.W.3d 548, 550-51 (Mo. App. E.D. 2000); Harper v. Dir. of Revenue, 14 S.W.3d 614, 616 (Mo. App. E.D. 1999); Misener v. Dir. of Revenue, 13 S.W.3d 666, 668 (Mo. App. E.D. 2000); Prozorowski v. Dir. of Revenue, 12 S.W.3d 405, 407 (Mo. App. E.D. 2000); Childs v. Dir. of Revenue, 3 S.W.3d 399, 401 (Mo. App. E.D. 1999); Rhodes, 994 S.W.2d at 599; Combs v. Dir. of Revenue, 991 S.W.2d 690, 692 (Mo. App. E.D. 1999); Devereux v. Dir. of Revenue, 990 S.W.2d 658, 660 (Mo. App. E.D. 1999); Guccione v. Dir. of Revenue, 988 S.W.2d 649, 652 (Mo.App. E.D. 1999); White v. Dir. of Revenue, 986 S.W.2d 475, 476 (Mo. App. E.D. 1998); Adkins v. Dir. of Revenue, 985 S.W.2d 407, 409 (Mo. App. E.D. 1999); Kafoury v. Dir. of Revenue, 983 S.W.2d 188, 189 (Mo. App. E.D. 1998); Hurley v. Dir. of Revenue, 982 S.W.2d 694, 696 (Mo. App. E.D. 1998); Farin v. Dir. of

Revenue, 982 S.W.2d 712, 714 (Mo. App. E.D. 1998); Bramer v. Dir. of Revenue, 982 S.W.2d 793, 794 (Mo. App. E.D. 1998); Plank v. Dir. of Revenue, 982 S.W.2d 811, 814 (Mo. App. E.D. 1998); Haas v. Dir. of Revenue, 975 S.W.2d 483, 484 (Mo. App. E.D. 1998); Anderson v. Dir. of Revenue, 969 S.W.2d 899, 902 (Mo. App. E.D. 1998); Green, 961 S.W.2d at 938. We hold that, in a trial de novo under section 302.535.1, once the Director makes a prima facie showing of probable cause of driving while intoxicated, the driver is entitled to present rebuttal evidence which raises a genuine issue of fact regarding the validity of the blood alcohol test results. The rebuttal evidence must be substantial and competent to challenge the presumption of validity established by the Director's prima facie case; but the driver's burden is one of production not persuasion. The Director retains the burden of proof throughout the proceeding and must ultimately convince the circuit court, by a preponderance of the evidence, that the driver drove while intoxicated. Sufficiency of Verdoorn's Rebuttal Evidence Verdoorn's rebuttal of the Director's case was based on expert testimony asserting a "metabolic curve" defense. The expert, Dr. William Watson, made a toxicological assessment of Verdoorn's blood alcohol concentration in light of the fact that Verdoorn drank as many as six beers in the twenty-five minutes before his vehicle was stopped by Deputy Cowan. Dr. Watson testified "to a reasonable degree of toxicological certainty" that Verdoorn's blood alcohol level was below .126 at the time of the stop and that it was "equally likely" his level was "above or below" the legal limit of .10%. Verdoorn presented no evidence that his blood alcohol concentration was in fact below the legal limit at the time he was stopped. The expert's testimony showed only that Verdoorn could have been intoxicated or that his blood alcohol concentration might not have reached the limit of .10% by the time he encountered Deputy Cowan. This inconclusive testimony was insufficient to rebut the presumption of intoxication established by the Director's prima facie evidence. The circuit court erred in reinstating Verdoorn's driver's license because Verdoorn failed to meet his burden of producing substantial evidence that his blood alcohol concentration was below .10%. The judgment is reversed.

All concur. Footnotes: FN1. All statutory citations are to the Missouri Revised Statutes 2000 unless otherwise indicated.

FN2. Effective September 29, 2001, section 302.505.1 was amended to reduce the minimum blood alcohol

concentration from .10% to .08% to suspend the license of a person driving while intoxicated. Verdoorn's case is unaffected by this change in the law because his DWI offense occurred on March 29, 2001, prior to the amendment's effective date. FN3. The Andersen decision, in the paragraph prior to the remand instructions, cites to Heiger, 733 S.W.2d at 492-93, and correctly recites the applicable evidentiary standard as follows: "Once the director proved [her] case by a preponderance of the evidence, it was then incumbent upon the driver to present evidence that his BAC was less than [the statutory limit] at the time he was driving his car." 944 S.W.2d at 224. Thus, Andersen's remand instructions -- requiring the driver's rebuttal evidence to meet the preponderance of evidence standard -- were inconsistent with the law as set forth in the text of the decision. FN4. This opinion has been reviewed and approved by order of the court en banc. Local Rule XXXI. Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.