Director offered no other evidence and Prozorowski offered no evidence. The commissioner found that while Prozorowski had a blood alcohol content of .10 percent or more, the arresting officer did not have probable cause to arrest him for driving while intoxicated. The commissioner noted there was no credible evidence that Prozorowski had been driving or operating the motor vehicle. The commissioner recommended that the Director reinstate Prozorowski's driving privileges. The circuit court signed the commissioner's findings and recommendations as its judgment.
Director now appeals.
On appeal, Director contends the trial court erred in setting aside Prozorowski's suspension because its decision that there was no evidence that Prozorowski had been driving or operating the motor vehicle is against the weight of the evidence and further, the trial court misinterpreted and misapplied the law in reaching its conclusion. We note that Prozorowski has not filed a brief responding to Director's appeal. The court's judgment will be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. When the Director makes a prima facie case, the burden then shifts to the driver to present evidence to rebut the prima facie case by a preponderance of the evidence. There is no dispute that Prozorowski had a BAC of .10 percent or more by weight.