Summary
In Overmann, the driver challenged the admission of the certificate of analysis for the simulator solution based on his claim that there was no evidence of conformity with 19 CSR 25-30.050(4).Overmann, slip op. at 3, ___ S.W.2d at ___ The driver contended that the Director failed to establish that the certificate of analysis met the requirements of The Uniform Business Records as Evidence Law, section 490.680 RSMo 1994, and that this section was not applicable to the certificate because it was `"hearsay on hearsay.'"
Summary of this case from Vilcek v. Director of RevenueOpinion
No. 72324
OPINION FILED: April 21, 1998
APPEAL FROM THE CIRCUIT COURT OF ST. LOUIS COUNTY, HONORABLE DANIEL J. O'TOOLE, JUDGE.
Robert W. Miller, 13930 Manchester Rd., St. Louis, MO 63011, for appellant.
Jeremiah (Jay) Nixon, P.O. Box 899 — Jefferson City, MO 63101, Paul Rauschenbach, 720 Olive St., St. Louis, MO 63101, for respondent.
Clifford H. Ahrens, P.J., William H. Crandall, Jr., J. (Writer), concurring.
Kent E. Karohl, J., dissenting.
DISSENT
I respectfully dissent. Overmann's objection to the admission of Exhibit C was well founded with respect to one of the four documents included in the exhibit. He did not object to the documents prepared by the police department which are the: (1) affidavit of the custodian; (2) breathalyzer maintenance repair report; and, (3) Type II permit of the maintenance officer. He objected to the admission of the certificate of analysis by the manufacturer on numerous legal grounds: (1) the certificate constituted double hearsay, first, a statement made by an unidentified laboratory to RepCo, and second, a statement made by Cecil B. Garner, President of RepCo to the Town and Country Police Department; (2) by express terms in the certificate, the author had no personal knowledge of the facts contained therein; (3) the events reported in the certificate would not permit identification of the source of the information or the time or mode of recording the test results; and, (4) "a proper foundation ha[d] not been laid."
The regulations of the Department of Revenue are intended to provide a reliable test result. If those regulations are followed, then the Director of Revenue (Director) can present evidence which will support a finding of blood alcohol content of .01% or greater. Thus, it may meet its burden of proof on one element. If the equipment or device approved by the Department for measuring blood alcohol content fails to meet Department regulations and there is a timely objection, then the test results will not support a required finding of fact. In this case, Overmann made evidentiary objections regarding the certificate of analysis of the manufacturer. The objections in this case presented issues of whether any statements made in the certificate of analysis were probative. If the rules of evidence are honored, overruling the objection was erroneous.
Our opinion in Dickerson v. Director of Revenue, 957 S.W.2d 478 (Mo. App. E.D. 1977), decided a different factual and legal issue. In Dickerson we found 19 CSR 25-30.050(4) applied only to the police department and the only proof required by that regulation is a demonstration that the police department complied with the requirements of the regulations. We allowed the admission of the certificate of analysis produced by the manufacturer of the solution which supported the police officer's affidavit for a limited purpose "to demonstrate that the [Hannibal Police Department] complied with the requirements of 19 CSR 25-30.050(4)." Id. at 481. There was no issue and we did not decide whether the certificate of the manufacturer was admissible to prove the truth of the matters asserted therein after objections of hearsay, lack of personal knowledge, uncertainty on facts of preparation and lack of foundation. The present appeal presents precisely those issues.
The fourth document in Exhibit C provides in relevant part "[r]andom samples of Lot Number 95008 of Alcohol Certified Solution for simulator were analyzed by an independent laboratory utilizing a gas chromatograph and found to contain .1217 gms/dl wt./vol. ethyl alcohol." This document is not a business record of the City of Town and Country for the purpose of proving the matters asserted. No employee of the City of Town and Country has any knowledge of the acts, events, conditions, opinions, or diagnosis recorded in the certificate. No employee of the City of Town and Country can offer any testimony as to when this certificate of analysis was prepared or the relationship of the time of preparation with the act, event, condition, opinion, or diagnosis referred to in the certificate. Accordingly, the certificate may be a business record for the limited purpose of establishing the conduct of the Town and Country Police Department as being in compliance with department regulations. It is not a business record for the purpose of providing evidence to support a finding of any of the matters asserted, particularly, that the simulator solution used by the police officers of Town and Country was certified by the manufacturer as required by 19 CSR 25-30.050(4). In this case, the deficiency is exacerbated by the fact that the certificate of analysis of the manufacturer is, by its terms, subject to the objections of lack of personal knowledge, insufficient as a business record of the manufacturer, and, lack of foundation. The rulings allowed the admission of substantive evidence of the use of a qualified solution where there was no evidence it was qualified and no other evidence to support a required finding of .01% blood alcohol content.
Accordingly, the Director failed to support the required finding that the testing methods mandated by section 577.020 RSMo 1994 were followed. The certificate of analysis required to support use of a chemical product is, by its terms, insufficient to support a finding of reliability for use of that product. Thus, there is no evidentiary foundation for admission of the test result. The Director relied on a document that is inherently unreliable. It was undated. It does not include the date of the analysis or the manner and conditions of the analysis. Not one of the protective requirements of section 490.680 RSMo 1994 applies to qualify the certificate as a business record of anyone to prove the matters asserted. Overmann had no opportunity to contest: (1) the mode of preparation of the certificate; (2) the certificate not being dated; (3) the manner or form of the unidentified laboratory's communication to RepCo; (4) the identity, mode, and preparation of a document by the testing laboratory, if there was one which reported the test or its results to RepCo; and, (5) the qualifications of the unidentified laboratory. It is not possible to determine the sources of information; method and time of preparation of relevant documents by the unidentified laboratory or by the manufacturer.
Overmann's objections to the certificate of analysis for the test solution used by the Town and Country Police Department on his breathalyzer test were based on unchallenged rules of evidence. His objections were directed at the failure of the certificate of analysis to prove that a test was conducted in accordance with Department of Revenue regulations. So long as the manufacturer fails to provide a certificate of analysis which is based upon first-hand knowledge and contains statements of fact which support finding that the requirements of section 490.680 RSMo 1994 have been met, the Director will be unable to use breathalyzer tests results. The Director is entitled to know who analyzed the simulator solution, how, where, and when each lot number is analyzed, and the conditions under which the analysis results were recorded. The required certificate of analysis must provide the Director with a basis to conclude the test analysis was reliable. The document admitted in this case screens that information from the Director, the petitioner and the court. The RepCo certificate offers no support for concluding that the test results were probative. The test result is in doubt when RepCo provides a certificate which is wholly deficient from an evidentiary perspective because the breathalyzer was calibrated with a RepCo solution which may not have been tested.
The rules of evidence required the court to sustain the various objections to the admission of the defective certificate which was offered, received and considered as substantive evidence of matters stated therein. The Director and Overmann are entitled to an opinion reversing the trial court judgment.