Bescheinen v. Director of Revenue, WD
| Citation | 999 S.W.2d 324 |
| Decision Date | 14 September 1999 |
| Docket Number | No. WD,WD |
| Parties | Aaron BESCHEINEN, Respondent, v. DIRECTOR OF REVENUE, Appellant. 56525. |
| Court | Missouri Court of Appeals |
James Chenault, III, Government Counsel, Jefferson City, for Appellant.
Kenneth M. Hayden, Versailles, for Respondent.
The Department of Revenue's director appeals the circuit court's judgment repealing the director's suspension of Aaron Bescheinen's driving license. The director contends that the judgment was against the weight of the evidence. We agree and reverse the circuit court's judgment.
The sole issue is whether the director established in his case against Bescheinen that Morgan County sheriff's deputies followed mandatory testing techniques and methods. To meet his burden of proof, the director was obligated to establish that officers tested Bescheinen according to techniques and methods approved by the Department of Health. Eckhoff v. Director of Revenue, State of Missouri, 745 S.W.2d 815, 816 (Mo.App.1988).
The issue arises from the testimony of William Surface, a Missouri Highway Patrol trooper, concerning a solution that he used to test the accuracy of a machine that officers used to measure Bescheinen's blood alcohol concentration. During Bescheinen's cross-examination, Surface testified:
Q. [W]ould it make a difference how potent the solution was that was used to maintain the machine, the ethyl vapor concentration of the solution? Would that make a difference?
A. Yes, it would.
....
Q. The certificate [that came with the bottle containing the solution] says that this solution ... had a .1212 concentration by grams per deciliter weight volume of ethyl alcohol. That's what--
A. That's what the paper says, yes.
....
Q. So it's not an ethanol vapor concentration of .10[;] it's .1212?
A. Yes. I just--[l]ike I said, that's taken from the sticker on the bottle.
During the director's redirect examination of Surface, the trooper acknowledged that he did not "know much about a lot of this information that's contained on this certificate of analysis." Later, Bescheinen called Surface as his witness and elicited his testimony that the manufacturer's handbook for the machine indicated that the solution used to test the machine should contain an ethanol vapor concentration of .09 to .11, and that .1212 was higher than .11.
On September 17, 1998, the circuit court entered judgment for Bescheinen. It asserted that the director had not met his burden of proving that Bescheinen was driving a motor vehicle while the alcohol concentration in his blood was .10 percent or more. The director argues that the circuit court erred because he did establish that the machine that was used to test Bescheinen's blood alcohol concentration had been maintained in conformity with Department of Health requirements. We concur.
The Department of Health's maintenance standard in effect when Surface tested the machine on January 6, 1998--set out in 19 CSR 25-30.051(1)--required that the solution used to test the machines had 1 After Surface tested the machine, but before Bescheinen's trial, the Department of Health amended this regulation to require that "[s]tandard simulator solutions, used to verify and calibrate evidential breath analyzers at the 0.10% or 0.100% level, shall be solutions from approved suppliers." 2 The director argues, on the basis of Eckhoff, 745 S.W.2d at 817, that regulations governing testing procedures were procedural, rather than substantive, requirements; therefore, the amendment to Regulation 25-30.351(1) applied retrospectively to Bescheinen's case.
We do not need to determine whether the regulation should have applied retrospectively because we conclude that the director established that the techniques and methods that officers used to test Bescheinen complied with the regulation in effect at the time of the maintenance test. We conclude that the director met his burden of proof even applying the more stringent standard of the former regulation.
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...v. Williams, 11 S.W.3d 728, 729–30 (Mo.App. W.D.1999) (before Breckenridge, P.J., Ellis and Spinden, JJ.); Bescheinen v. Dir. of Revenue, 999 S.W.2d 324, 324 (Mo.App. W.D.1999); Hawkins v. Dir. of Revenue, 7 S.W.3d 549, 552 (Mo.App. E.D.1999); Meurer v. Dir. of Revenue, 984 S.W.2d 873, 878 ......
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