Baker v. Dir. of Revenue for State
| Decision Date | 13 February 2019 |
| Docket Number | WD 81325 |
| Citation | 569 S.W.3d 63 |
| Parties | Joseph Franklin BAKER, Respondent, v. DIRECTOR OF REVENUE FOR the STATE of Missouri, Appellant. |
| Court | Missouri Court of Appeals |
Morgan Brewington, Jefferson City for appellant.
James R. Hall, Oak Grove for respondent.
Before Division Three: Anthony Rex Gabbert, P.J., and Victor C. Howard and Alok Ahuja, JJ.
Respondent Joseph Baker was arrested for driving while intoxicated. After his blood alcohol concentration tested over the legal limit, the Director of Revenue suspended his driving privileges. Baker then filed a petition for a trial de novo in the Circuit Court of Lafayette County. At trial, the circuit court refused to admit the results of the breath test performed on Baker. The court excluded the test results because it concluded that the location of the testing (inside a law enforcement patrol vehicle) violated regulations promulgated by the Department of Health and Senior Services ("DHSS"). After excluding the breath test results, the court found that the Director of Revenue had failed to prove that Baker had driven his vehicle with an excessive blood alcohol concentration, and it accordingly set aside the suspension of Baker’s driver’s license.
The Director of Revenue appeals. Because we conclude that the circuit court excluded the breath test results on an erroneous basis, we reverse, and remand the case to the circuit court for a new trial.
On May 8, 2017, Missouri State Highway Patrol Trooper Trent Baxter initiated a stop of Baker’s vehicle in Lafayette County after observing that the vehicle had only one working taillight. Upon making contact with Baker, Trooper Baxter immediately detected a strong odor of alcohol. Trooper Baxter also observed that Baker’s speech was slurred, and his eyes were bloodshot. The Trooper observed an open case of beer on the passenger-side floorboard, and an open beer can behind the front passenger seat. Baker stated that he had consumed about five beers.
Baker agreed to perform a series of field sobriety tests. Based on Baker’s performance, Trooper Baxter arrested him for driving while intoxicated. The Trooper read Missouri’s Implied Consent law to Baker, and Baker agreed to submit to a breath test. Baker was instructed to remove the chewing tobacco from his mouth, and after he did so Trooper Baxter performed a mouth check and began the 15-minute observation period. After completing the observation period, Trooper Baxter administered a breath test using an Alco-Sensor IV with Printer testing machine ("AS-IV-P"). The test was administered inside the Trooper’s patrol car. Trooper Baxter’s first two attempts to collect a breath sample failed because the testing device detected radio frequency interference ("RFI"). After Trooper Baxter turned off the radios in his own patrol car, and asked the other responding officers to turn off their radios, he was able to collect a valid breath sample. The testing machine indicated that Baker’s blood alcohol concentration was .181%.
The Director suspended Baker’s driving privileges pursuant to § 302.505, RSMo. The suspension of Baker’s driver’s license was upheld following an administrative hearing. Baker then petitioned the circuit court for a trial de novo pursuant to § 302.535, RSMo.
The circuit court conducted a bench trial on November 9, 2017. At trial, the Director’s counsel asked Trooper Baxter to testify regarding the result of Baker’s breath test. Baker’s counsel objected on the grounds that the breath test was not conducted in an approved location. Although the circuit court initially overruled Baker’s objection, it later reversed its previous ruling, and sustained Baker’s objection to the admission of the breath test results. The court sustained Baker’s objection because the form of Blood Alcohol Test Report promulgated by DHSS requires the operator to certify that "[n]o radio transmission occurred inside the room where and when this [breath analysis] was being conducted." 19 C.S.R. 25-30.060(3), Form #8 (emphasis added). The court recognized that Trooper Baxter’s patrol vehicle was a permissible location for conducting the breath test under 19 C.S.R. 25-30.050(2). Nevertheless, the court reasoned that "[w]hen you got on this form it’s to be done in a room, and this form has got to be used, it’s in conflict with" 19 C.S.R. 25-30.050(2). The court concluded that the Director had failed to establish that the breath test complied with the DHSS-mandated procedures because the test was not conducted inside a "room"; "[a] patrol car is not a room."
After the circuit court announced that it was excluding the breath test results, the Director made an offer of proof, during which Trooper Baxter testified that Baker’s blood alcohol concentration was .181% based on the result of the breath test he performed in his patrol car.
The circuit court entered its judgment on November 29, 2017. The court found that the Director had proven that Baker was arrested based on probable cause to believe that he had committed an alcohol-related traffic offense. The circuit court also found that "the tests' administration in the front passenger seat of [Trooper] Baxter’s patrol car satisfied the requirements of 19 CSR 25-30.050(2)," which provides that "[b]reath analyzers are to be used within buildings or vehicles used for driving-while-intoxicated enforcement." The court nevertheless found that the test had been performed in an improper location, because the Blood Alcohol Test Report form promulgated by DHSS for use with the AS-IV-P required the device operator to certify that "[n]o radio transmission occurred inside the room where and when this was being conducted." The judgment states that "[t]his Court finds that [Trooper] Baxter’s patrol car is not a room as required by the certification on Form #8."
Based on its "conclusion that the breath testing results are inadmissible," the court found "that there was no credible evidence that [Baker’s] blood alcohol content was 0.08% or higher as required by Missouri law." The court therefore set aside the suspension of Baker’s driving privileges.
The Director of Revenue appeals.
On appeal from a court-tried case, " ‘the trial 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.’ " Hill v. Mo. Dep't of Conservation , 550 S.W.3d 463, 466–67 (Mo. 2018) (quoting White v. Dir. of Revenue , 321 S.W.3d 298, 307–08 (Mo. 2010) ); see also Stiers v. Dir. of Revenue , 477 S.W.3d 611, 614 (Mo. 2016). We review questions of law de novo. Hill , 550 S.W.3d at 467 (citing Pearson v. Koster , 367 S.W.3d 36, 43–44 (Mo. 2012) ). Interpretation of the DHSS’s regulations is a legal issue subject to de novo review. See Stiers , 477 S.W.3d at 614 (citation omitted); see also Gallagher v. Dir. of Revenue , 487 S.W.3d 24, 27 (Mo. App. E.D. 2016) (citation omitted).
The Director argues that the trial court erred in concluding that Baker’s breath test results were inadmissible because the test was conducted in an improper location. We agree.
Thus, in order to support the suspension of an individual’s driving privileges, the Director must prove that "(1) the driver was arrested on probable cause for violating an alcohol-related offense; and (2) the driver's [blood alcohol concentration] exceeded the legal limit of .08 percent." Shanks v. Dir. of Revenue , 534 S.W.3d 381, 386 (Mo. App. W.D. 2017) (citation and internal quotation marks omitted).
To establish that a driver’s [blood alcohol concentration] was over the legal limit, the Director may introduce evidence of the results of a breath analyzer
test. To lay a foundation for admission of those results, the Director must establish that the test was performed using the approved techniques and methods of DHSS, by an operator holding a valid permit and on equipment and devices approved by the DHSS.
Roam v. Dir. of Revenue , 559 S.W.3d 1, 3 (Mo. App. E.D. 2018) (citing Gallagher v. Dir. of Revenue , 487 S.W.3d 24, 26 (Mo. App. E.D. 2016) ); see also § 577.037, RSMo.
The DHSS’s regulations expressly authorized Trooper Baxter to conduct a breath test in his patrol vehicle. Those regulations specifically identify the Alco-Sensor IV with Printer as an approved breath analyzer
. 19 C.S.R. 25-30.050(1). The regulation continues:
Breath analyzers
are to be used within buildings or vehicles used for driving-while-intoxicated enforcement. These breath analyzers are not approved for mobile use in boats or in outside areas.
The circuit court correctly concluded that Trooper Baxter’s patrol vehicle is a "vehicle used for driving-while-intoxicated enforcement" within the meaning of 19 C.S.R. 25-30.050(2). The Eastern District of this Court decided this precise issue in Marquart v. Dir. of Revenue , 549 S.W.3d 56 (Mo. App. E.D. 2018). The driver in Marquart – like Baker – challenged the use of an AS-IV-P inside a deputy sheriff’s patrol vehicle. The Court rejected the driver’s argument, and explained that the plain language of 19 C.S.R. 25-30.050(2) included all law-enforcement vehicles used to enforce traffic laws:
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