William Edward Klobe, 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: William Edward Klobe, Respondent, v. Director of Revenue, State of Missouri, Appellant. Case Number: No. 71560 Handdown Date: 07/22/1997 Appeal From: Circuit Court of St. Charles County Counsel for Appellant: Ronald D. Pridgin, Special Assistant Attorney General Counsel for Respondent: Charles Rizzo Opinion Summary: Appellant, the Director of Revenue for the State of Missouri ("Director"), appeals from the judgment of the Circuit Court of St. Charles County setting aside the suspension of driving privileges of respondent, William Edward Klobe ("driver"). REVERSED AND REMANDED. Division One Holds: The circuit court erred in failing to record the trial de novo as mandated by section 512.180.2, RSMo 1994. Without the record on appeal, the evidentiary basis for the circuit court's decision to set aside the suspension of driver's driving privileges is unclear. We remand for a new trial and direct that a recording of that trial be made. Citation: Opinion Author: GARY M. GAERTNER, Judge Opinion Vote: REVERSED AND REMANDED. Dowd, Jr., P.J., and Reinhard, J., concur. Opinion:

Appellant, the Director of Revenue for the State of Missouri ("Director"), appeals from the judgment of the Circuit Court of St. Charles County setting aside the suspension of driving privileges of respondent, William Edward Klobe ("driver"). We reverse and remand. On October 10, 1995, at about 1:00 a.m., Missouri State Highway Patrolman Harold E. Smith, Jr.

("Trooper Smith"), noticed a white and blue pickup truck weaving on Interstate 70. He pulled the truck over. When Trooper Smith spoke with driver, he immediately detected a strong odor of intoxicants and noted driver's speech was slurred and his eyes were watery and staring. Trooper Smith asked driver to exit his truck; when he did, driver swayed badly. Trooper Smith conducted three field sobriety tests on driver, including the gaze nystagmus test, the one- leg stand test, and the walk-and-turn test. Based upon driver's performance of the field sobriety tests, Trooper Smith arrested driver for driving while intoxicated and transported him to the St. Charles County Sheriff's Department. Trooper Smith gave driver his Miranda and Implied Consent warnings. Driver agreed to take a breath test. Trooper Smith administered the breath test using a BAC Data Master. The results of the test revealed driver's blood alcohol content to be .17 percent. Director revoked driver's license, effective October 25, 1995. Driver requested an administrative hearing, which was conducted November 21, 1995. Following the hearing, Director sustained the revocation. Driver filed a petition for trial de novo in the Circuit Court of St. Charles County. The case was heard, and at the trial's conclusion, the court set aside the revocation of driver's driving privileges. The case was not preserved by sound recording or a court reporter. Director filed a notice of appeal and requested a copy of the trial transcript pursuant to Rule 81.12(c). The court clerk informed Director no record of the case had been made. Pursuant to RSMo section 302.535,(FN1) circuit courts have de novo review of administrative decisions made under RSMo sections 302.500-302.540. We review the circuit court's decision, not the administrative decisions below, and affirm unless there is no evidence to support it, it is contrary to the weight of the evidence, or it erroneously declares or applies the law. Kinder v. Director of Revenue, 895 S.W.2d 627, 628 (Mo.App.E.D. 1995). Director's sole point on appeal is that the circuit court erred in failing to record the trial de novo. We agree with Director. The trial court failed to preserve a record of the proceeding. Without the record on appeal, it is unclear what evidence was presented at the trial de novo. Accordingly, the judgment of the circuit court is reversed, and the cause is remanded for a new trial of which a record shall be made. See Panhorst v. Director of Revenue, 894 S.W.2d 168, 169 (Mo.banc 1995) and Kellison v. Director of Revenue, 908 S.W.2d 192, 193 (Mo.App.E.D. 1995). Reversed and remanded.

Footnotes: FN1. All statutory references are to RSMo 1994. Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.