Collins v. Dir. of Revenue

• Decision Date: 07 May 2013
• Docket Number: No. WD 75214.,WD 75214.
• Citation: 399 S.W.3d 95
• Parties: Anthony Dewayne COLLINS, Respondent, v. DIRECTOR OF REVENUE, State of Missouri, Appellant.
• Court: Missouri Court of Appeals

399 S.W.3d 95

Anthony Dewayne COLLINS, Respondent,

v.DIRECTOR OF REVENUE, State of Missouri, Appellant.

No. WD 75214.

Missouri Court of Appeals, Western District.

May 7, 2013.

John H. Edmiston, Warrensburg, MO, for Respondent.

Chris Koster, Attorney General, James A. Chenault, III, and Rachel Michelle Jones, Special Assistant Attorneys General, Jefferson City, MO, for Appellant.

Before Division Two: ALOK AHUJA, Presiding Judge, and KAREN KING MITCHELL and GARY D. WITT, Judges.

KAREN KING MITCHELL, Judge.

The Director of Revenue appeals the trial court's reinstatement of Anthony Collins's driver's license, following a prior administrative suspension for driving with an excessive blood alcohol content (BAC). Director argues that the trial court erred in finding Collins's BAC results inadmissible in that: (1) Collins failed to lodge a timely and specific objection to the foundation for admission of the BAC results; and (2) once the BAC results were in evidence, Director was entitled to a presumption of validity that Collins failed to rebut. We reverse and remand.

Factual Background

On November 13, 2010, Deputy Larry Lehman of the Pettis County Sheriff's Department, along with Corporal Ryan Smith of the Missouri State Highway Patrol, conducted a traffic stop and investigation of Collins, following a report that Collins had recently been involved in a fight at a local bar. When Deputy Lehman approached Collins's vehicle to request his driver's license, Deputy Lehman noticed an odor of alcohol and that Collins's eyes were watery. Corporal Smith also noticed an odor of intoxicants coming from Collins's vehicle ¹ and that Collins's eyes were bloodshot. Corporal Smith asked Collins how much he had to drink that evening, and Collins responded that he had “three or four beers.” Corporal Smith then asked Collins to exit his vehicle and participate in some field sobriety tests. Collins complied.

On the horizontal gaze nystagmus test, Collins demonstrated four of six possible clues of intoxication. During the walk-and-turn test, Collins failed to maintain a heel-to-toe stance, he began the test before being instructed to do so, he stepped off the line, he took an incorrect number of steps, he failed to count his steps out loud, and he used his arms for balance; all of these were clues indicating intoxication. Corporal Smith also administered a portable breath test that revealed the presence of alcohol in Collins's system. Corporal Smith then placed Collins under arrest for suspicion of driving while intoxicated and transported him to the Pettis County Jail.

At the jail, Corporal Smith advised Collins of both the Miranda warnings and Missouri's Implied Consent Law. Collins agreed to provide a breath sample. Corporal Smith observed Collins for a fifteen-minute time period, with the exception of a brief six-to-ten-second departure when Corporal Smith turned his back on Collins and walked into an adjacent room to retrieve Collins's license. Corporal Smith did not observe Collins smoke, vomit, or have any oral intake while Corporal Smith was in the room, and, upon his return to the room, Corporal Smith saw no evidence that any of those things had occurred during his brief absence. Collins then submitted to the breath test, which revealed a blood alcohol content of .120%.

Director administratively suspended Collins's license for driving with an excessive BAC, and Collins sought a trial de novo. At trial, the court received testimony from Deputy Lehman, Corporal Smith, and Trooper Mark Degraffenreid. Corporal Smith acknowledged leaving the room for six to ten seconds, during which he could not see Collins.

After Corporal Smith testified regarding the results of the BAC test, Director sought to introduce Exhibit A, which contained the Alcohol Influence Report and results of the breath test. Collins objected, arguing, “Judge, I understand that by statute these are to come in, but I—I do object to the Court's consideration of numerous matters in the report, items that are not testified to, items that lack foundation....” The court interrupted, acknowledging that it could not consider double hearsay contained within the report. The court also stated, “[n]ow foundation, you know, I can look and see what's double hearsay in there and ignore it, but if you can tell me what foundation problems specifically you have.” Collins argued that the results of the portable breath test lacked foundation, and that, “with the rest of the Corporal's testimony ... I think the court could probably consider that, other than like the hearsay or hearsay matters ... and any other things [the court found to be] inappropriate.” The Director responded that she agreed that the portable breath test results and the double hearsay should be excluded, but stated, “if it's anything else that you decide to keep out, I wish to make an offer of proof of it for the record, since I don't know what that could be.” The court agreed not to consider either the results of the portable breath test or any double hearsay, but indicated, “it's probably better if I have a specific objection to anything else.” Collins made no further objection, and the court did not indicate whether the exhibit was admitted, but the court did ask Corporal Smith whether Collins had any health complaints, and Corporal Smith acknowledged that Collins suffered from acid reflux and required daily medication.

Director then solicited evidence from Corporal Smith that Collins had already taken his medication the day of the breath test and that Collins never made any complaints to Corporal Smith about the acid reflux that day. Corporal Smith further testified that he never observed Collins make any “funny actions, as though he might be belching or vomiting....”

On cross-examination, Corporal Smith acknowledged that acid reflux can cause belching and that belching was something he should be looking for during the fifteen-minute observation period. Corporal Smith also acknowledged that the Code of State Regulations required that, if he lost sight of Collins at any point during the fifteen minutes, he would have to restart the observation period. Corporal Smith agreed that he did not follow the regulations when he left the room and that he did not know what could or could not have happened during the time he was absent from the room.

On redirect, Corporal Smith indicated that the breath test machine did not give any interference or error codes. Director then called Trooper Degraffenreid to testify regarding the maintenance and proper functioning of the DataMaster machine used to obtain Collins's BAC. Trooper Degraffenreid testified that the DataMaster is designed to abort a breath test and indicate “invalid sample” if mouth alcohol is detected.

On cross-examination, Trooper Degraffenreid acknowledged that the regulations, specifically 19 CSR § 25–30.011, require “strict” compliance. Trooper Degraffenreid also acknowledged that belching could result in the presence of mouth alcohol. But he further testified that, if mouth alcohol was present, the machine would indicate that the sample was invalid. He also indicated, however, that compliance with the regulations would require the observationperiod to restart if the subject belched or vomited.

During closing arguments, Director argued that, even though the fifteen-minute observation period had not been strictly complied with, the deviation was negligible and that there was no evidence that anything occurred during Corporal Smith's absence that would have affected the accuracy of the test results. Collins directed the court to the Southern District's opinion in Hilkemeyer v. Director of Revenue,² for the proposition that the driver has no obligation to prove that anything actually occurred during the fifteen-minute observation period that would have affected the accuracy of the test results.

The court issued its judgment, finding the breath test results inadmissible due to a lack of foundation based upon Corporal Smith's failure to strictly comply with the fifteen-minute observation period, and reinstating Collins's driver's license. Director appeals.

Standard of Review

“As in any court-tried civil case, in a driver's license suspension case, this Court must affirm the trial court's judgment ‘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.’ ” Harvey v. Dir. of Revenue, 371 S.W.3d 824, 826 (Mo.App. W.D.2012) (en banc) (quoting Zahner v. Dir. of Revenue, 348 S.W.3d 97, 100 (Mo.App. W.D.2011)). “ ‘We view the evidence in the light most favorable to the judgment and where the facts relevant to an issue are contested, deference is given to the circuit court's assessment of that evidence.’ ” Id. (quoting Bieker v. Dir. of Revenue, 345 S.W.3d 254, 255–56 (Mo.App. S.D.2010)).

Analysis

In Director's first point, he argues that the trial court erred in finding—absent a timely, specific objection by Collins—that evidence regarding Collins's BAC test results was inadmissible.³ In his second point, Director argues that once evidence of Collins's BAC was in evidence, Director was entitled to a statutory presumption of validity of the BAC evidence and that the burden then shifted to Collins to present evidence demonstrating invalidity of the test results. We agree with Director's first point, in part, but we reject his second point.

A. Admissibility of BAC test results

Evidence regarding Collins's BAC was presented in two ways at trial: first, through Corporal Smith's testimony; and second, through Director's Exhibit A. Corporal Smith's testimony was admitted without objection. When Director's Exhibit A was introduced, Collins offered a vague foundational objection, but—despite the court's invitation to do so—failed to specify the grounds for the objection. The court did not immediately rule on admissibility of Exhibit A. In its judgment, the court found that “[b]y...