Duing v. DIRECTOR OF REVENUE, STATE OF MO. , 2001 Mo. App. LEXIS 1935 ( 2001 )

MARY K. HOFF, Chief Judge,

dissenting in part.

I respectfully dissent from the majority on the limited issue of whether this case should be remanded to the trial court for additional evidence regarding whether the “little pinch” of chewing tobacco in Driver’s mouth had any effect on his breath analysis test.

As noted by the majority opinion, Driver waived any foundational objections regarding the breath analysis test result by not objecting when it was offered into evidence. Also, because Driver testified that he put tobacco in his mouth at the time of the traffic stop and had the tobacco in his mouth throughout the observation period and administration of the breath analysis test, the requirement of no “oral intake” of regulation, 19 C.S.R. 25-30.060, was not breached.

Furthermore, there was no evidence produced which indicated that the tobacco would have contaminated the results of the breath analysis test. Once the Director made a prima facie case for suspension under Section 302.505.1, it was Driver’s burden to present evidence to rebut this conclusion by a preponderance of the evidence. Driver had the opportunity to present such evidence at trial but failed to do so. Hence, the trial court’s judgment reinstating the Driver’s license was in error. See Testerman v. Director of Revenue, 31 S.W.3d 473, 484 (Mo.App. W.D. 2000).

As a result, I would reverse and remand the judgment of the circuit court reinstating Driver’s license and remand for the court to enter its judgment affirming the Director’s suspension of Driver’s driving license pursuant to Section 302.505.1.