Overmann v. Director of Revenue

CRANDALL, Judge.

Daniel Overmann appeals from the judgment of the trial court that upheld the “suspension/revocation” of his driving privileges.1 We affirm.

On September 17, 1996, a police officer from the City of Town and Country observed a vehicle driven by Overmann cross traffic lanes four times without signaling. The officer stopped Overmann and “noticed a moderate odor of an intoxicating beverage on his breath.” The officer administered four field sobriety tests. Overmann failed three of the tests and the results of the fourth test were inconclusive. The officer arrested Overmann pursuant to a Town and Country ordinance for driving while intoxicated. After advising Overmann of his rights under Missouri’s implied consent law, the officer administered a breath alcohol test. The test showed a blood alcohol content of .136.

After an administrative hearing officer upheld the action taken by the Director of Revenue (Director) regarding Overmann’s driving privileges, he filed a petition for trial de novo in circuit court. A commissioner heard the case and found that the police officer had probable cause to arrest Over-mann and he had a blood alcohol concentration of .10% or more by weight.- The commissioner recommended sustaining the Director’s order regarding Overmann’s driving privileges. The trial court adopted and affirmed the findings and recommendations of the commissioner as the judgment of the court. Overmann appeals from this judgment.

*185The judgment of the trial court will be affirmed unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Peeler v. Director of Revenue, 934 S.W.2d 329, 330 (Mo.App. E.D. 1996).

The Director had the burden at the trial de novo to show by a preponderance of the evidence that (1) the arresting officer had probable cause to arrest Overmann for driving while intoxicated, and (2) at the time of the arrest, Overmann’s blood alcohol content was .10% or greater. Rogers v. Director of Revenue, 947 S.W.2d 475, 476-77 (Mo.App. E.D.1997). Overmann does not argue that the officer did not have probable cause to arrest him for driving while intoxicated.

Overmann does argue that the Director failed to lay a proper foundation for admission of the breathalyzer test. For the Director to establish a “prima facie” foundation for admission into evidence of a breathalyzer test, the Director must demonstrate that the testing methods set out in section 577.020 RSMo 1994 were followed, in that the test was performed (1) according to techniques and methods approved by the Department of Health, (2) by persons possessing a valid permit, and (3) using equipment and devices approved by the department. Id. at 477.

Overmann relies on Department of Health regulation, 19 CSR 25-30.050(4) which provided at the time of the test that “Approved standard simulator solutions used to verify and calibrate breath analyzers shall be certified by the manufacturer of that solution, and evidence of such certification shall accompany the maintenance report.” Overmann argues that because the trial court erred in admitting the manufacturer’s certificate of analysis for the simulator solution used to calibrate the breathalyzer, there is no evidence the test was performed according to the above quoted Department of Health regulation.

Relying on the business records exception, the Director introduced into evidence, over objection, an exhibit which contained the certificate of analysis at issue. The exhibit also had an affidavit from a Town & Country police officer attesting that he was the custodian of records of the Town and Country police department and that the records were kept as required by section 490.680 RSMo 1994.2 The certificate of analysis provides that random samples of the alcohol certified solution were analyzed by an independent laboratory and also provides results from the analysis.

Overmann contends in his first point that the Director failed to establish that the certificate of analysis meets the requirements under The Uniform Business Records as Evidence Law, section 490.680. In his second point, Overmann contends that section 490.680 is not applicable to the certificate of analysis because it constituted “hearsay on hearsay.”

Section 490.680 provides a statutory exception to the hearsay exclusionary rule by permitting the admission of business records if the custodian of the record or other qualified witness establishes a proper foundation by attesting to the records’ identity and mode of preparation. Dickerson v. Director of Revenue, 957 S.W.2d 478, 480 (Mo.App. E.D. 1997). Furthermore, section 490.692.1 RSMo 1994 permits the custodian or other qualified witness to establish the requisite foundation for admission of the records by affidavit rather than by testifying at trial. Id.

In Dickerson, this court considered the effect of 19 CSR 25-30.050(4) for admitting a certificate of analysis. This court stated that “under 19 CSR 25-30.050(4), the director is only required to demonstrate (1) the police department used a solution certified by the solution’s manufacturer in calibrating the breath analysis machine and (2) *186the police department attached proof of the manufacturer’s certification to the maintenance report the police department submitted to the department of health.” Id. at 480-81(citing Mullins v. Director of Revenue, 946 S.W.2d 770, 773 (Mo.App. E.D. 1997)). We further stated “Because the requirements of 19 CSR 25-30.050(4) apply only to the police department, the director need only offer the testimony of a representative of the police department to demonstrate that the department complied with the requirements of 19 CSR 25-30.050(4).” Id. at 481.

As in Dickerson, here the Director attached the certificate of analysis to a police officer’s affidavit to demonstrate that the police department complied with the requirements of 19 CSR 25-30.050(4) in maintaining its breath analysis machine. Id. The Town and Country police officer’s affidavit is in the identical form of that of the model provided in section 490.692.3. Under The Uniform Business Records as Evidence Law, the certificate of analysis was admissible to demonstrate that the Town and Country police department complied with the requirements of 19 CSR 25-30.050(4). Id. Because the certificate of analysis was properly admitted into evidence, defendant’s two points are denied.

The judgment is affirmed.3

AHRENS, P.J., concurs.

. In his brief, Overmann refers to the suspension of his driving privileges whereas the Director of Revenue refers to revocation.

. Section 490.680 is part of The Uniform Business Records as Evidence Law and provides "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.”

. Overmann's motion for court costs and attorneys' fees incurred for this appeal is denied. See Section 302.536 RSMo Cum.Supp.1996.