Coyle v. Director of Revenue

• Decision Date: 19 November 2002
• Docket Number: No. WD 60476.,WD 60476.
• Citation: 88 S.W.3d 887
• Parties: Michael COYLE, Respondent, v. DIRECTOR OF REVENUE, Appellant.
• Court: Missouri Court of Appeals

88 S.W.3d 887

Michael COYLE, Respondent, v. DIRECTOR OF REVENUE, Appellant.

No. WD 60476.

Missouri Court of Appeals, Western District.

November 19, 2002.

COPYRIGHT MATERIAL OMITTED

Jeremiah W. (Jay) Nixon, Attorney General, Jefferson City, MO, Kimberley R. Fournier, Assistant Attorney General, Kansas City, MO, for Appellant.

Jeffrey S. Eastman, Gladstone, MO, for Respondent.

Before BRECKENRIDGE, P.J., and HOWARD and HOLLIGER, JJ.

VICTOR C. HOWARD, Judge.

After the Director of the Department of Revenue suspended his driver's license for driving with an excessive blood-alcohol content (BAC) pursuant to § 302.505.1,¹ Michael Coyle petitioned the Platte County Circuit Court for a trial de novo pursuant to § 302.535. At the trial de novo, Mr. Coyle objected to the admission of his BAC test result because an unauthorized software change had previously been made to the DataMaster breathalyzer used to test his BAC. The court sustained the objection and refused to admit Mr. Coyle's BAC test result. At the close of the Director's case, Mr. Coyle moved to set aside the suspension because the Director had not met his burden of proving that Mr. Coyle's BAC was greater than .10 percent. The court sustained his motion and set aside the suspension.

On appeal, the Director maintains that the trial court erred in refusing to admit the BAC test result because he laid a proper foundation for admission of Mr. Coyle's BAC. Thus, the Director argues that he established a prima facie case, which Mr. Coyle failed to rebut, so the suspension of Mr. Coyle's driving privileges should have been upheld.

We agree that the Director laid a proper foundation for admission of Mr. Coyle's BAC test result. Since his BAC was not in evidence at trial, Mr. Coyle did not present any evidence at trial to rebut the Director's prima facie case. Therefore, we reverse the trial court's judgment and remand for further proceedings.

Background

When viewed in a light most favorable to the trial court's judgment, the evidence presented at the de novo hearing on Mr. Coyle's driver's license suspension showed as follows:

On October 8, 2000, Trooper David Brenton of the Missouri State Highway Patrol stopped Mr. Coyle's vehicle when he observed it entering the highway at Gateway and Riverway Roads in Platte County, Missouri, after dark without the headlights on. Trooper Brenton requested that Mr. Coyle step back to his patrol car. Once Mr. Coyle was inside his patrol car, Trooper Brenton detected a "moderate odor of intoxicating beverage about his person" and noted Mr. Coyle's bloodshot eyes and dilated pupils. Trooper Brenton then administered field sobriety tests which Mr. Coyle performed "poorly" on, and a preliminary breath test, which confirmed the presence of alcohol. As a result, Trooper Brenton placed Mr. Coyle under arrest and transported him to the police station. At the station, a BAC test was performed on a DataMaster that showed Mr. Coyle's BAC to be .137.

The Director subsequently suspended Mr. Coyle's driver's license pursuant to § 302.505.1. Mr. Coyle timely requested and received an administrative hearing on the suspension. After the administrative law judge affirmed the suspension, Mr. Coyle petitioned for de novo review of the suspension in Platte County Circuit Court, as permitted under § 302.535.

At the hearing on Mr. Coyle's petition for de novo review of the suspension, the Director attempted to introduce the result of Mr. Coyle's BAC test as part of his "Exhibit A." Captain Thomas Archibald testified concerning the maintenance performed on the "BAC DataMaster" used to test Mr. Coyle's BAC. Captain Archibald testified that he held a valid, "Type II" permit under 19 CSR 25-30.031 that mandated him to perform maintenance checks on the DataMaster breath analyzer machine every thirty-five days. He verified that he had made the necessary maintenance check on the machine used to check Mr. Coyle's BAC on October 1, 2000, just seven days prior to Mr. Coyle's arrest. He explained that he followed, without deviation, the mandated checklist in maintaining the machine, and he found the DataMaster to be "functioning within the Department of Health guidelines."

Upon cross-examination, Mr. Coyle's counsel questioned Captain Archibald about the installment of a new software chip in the DataMaster in April or May of 2000. The following exchange took place between Mr. Coyle's counsel and Captain Archibald:

Q: As a Type II, sir, your authority is limited, as I understand it, to maintaining the DataMaster, providing instruction to other Type II's, as well as Type III's, as well as doing field repairs?

A: Yes, sir. That is correct.

Q: And field repairs are specifically defined within the Code of State Regulations, correct?

A: Yes, sir.

Q: And what do field repairs consist of, sir?

A: We can change out the tape, the printer tape. I can't remember them all. Most — we don't do the field repairs, actually. If the DataMaster goes down, we send that in to the Missouri Safety Center, to Mr. Bob Welch. Most of the time he does our field repairs for us.

Q: And you know not the qualifications of Mr. `Welch, do you, sir?

* * *

A: I believe Mr. Welch is also a Type II.

* * *

Q: You would agree with me that in approximately May, late April of last year, a new chip was installed, software was changed in the DataMaster, correct?

A: I believe so, sir. I'm not absolutely sure. I don't know if I did the maintenance in May or not.... But there — there probably was, I would say.

Q: Okay. And that changed the programming sequence of the DataMaster, did it not?

A: There again, I — I'm not absolutely sure what — what the chip did or if the chip was installed. I — I didn't do the maintenance in May.

Q: Would you agree with me that in approximately May, spring, early summer of the year 2000, the software was changed in the DataMaster?

A: I believe it was, according to the Department of Health.

Q: Okay. And you know not who changed that software, correct?

A: No, sir.

Q: All right. You know not the qualifications of the individual who made that change, correct?

A: Depending on who it could have been, no, sir.

There was no other evidence offered on this software change to the DataMaster.

Trooper Brenton then testified concerning the circumstances under which he placed Mr. Coyle under arrest. When the Director attempted to introduce the result of the DataMaster BAC test performed on Mr. Coyle as part of Trooper Brenton's police file, Mr. Coyle's counsel objected on the grounds that "any attempt to use the breath test result in this case would be in violation of the Code of State Regulations [promulgated by the Department of Health (DOH)] because the code does not permit any type of change of software." The Director countered that the CSRs did not even address software changes one way or the other. The Director maintained that the matter was irrelevant because what he has to show to make his prima facie case is that the instrument was maintained within thirty-five days prior to the test and that it met the DOH regulations. Counsel for the Director claimed that she had done so. The court then asked about the CSR regulating maintenance of the DataMaster. Specifically, the court inquired, "we do not know who performed the change of the computer chip, is that correct, based upon the evidence here?" Both parties answered in the affirmative. The trial court then admitted the Director's Exhibit A "with the exception of the objected to results of the test that was given." It clarified that the three places in the exhibit where the BAC test result was mentioned were not admitted. Later in the hearing, the Director again requested that the court consider admitting the BAC test result. Mr. Coyle's counsel renewed his objection based upon the software change, and the court again sustained the objection and clarified that the maintenance report on the machine did come in but the breath test result did not.

The Director also called Mr. Coyle as a witness. On direct examination by the Director, Mr. Coyle admitted that he had pleaded guilty to the criminal DWI charge.² Upon cross-examination by his own counsel, Mr. Coyle explained that he had considered taking his criminal case to trial, but due to economic considerations, he chose to plead guilty. Mr. Coyle also testified concerning the circumstances surrounding his arrest.

At the close of the evidence, Mr. Coyle's counsel moved "to set aside the Director's action, [because] the Director ha[d] failed to sustain her burden to show the breath alcohol concentration required in the statute." The Director's counsel responded by again asking the court to consider admitting the breath test, pleading that she believed she had proved her prima facie case and complied with DOH regulations and case law. The court sustained Mr. Coyle's motion and entered a judgment directing that the Director's suspension of Mr. Coyle's license be set aside. This timely appeal by the Director follows.

Standard of Review

Mr. Coyle's motion at the close of the Director's evidence was, in effect, a motion for directed verdict, which "in a court-tried case submits the issue for a decision on the merits and is considered to be a motion for a judgment pursuant to Rule 73.01." The Cadle Co. v. Shearer, 69 S.W.3d 122, 124 (Mo.App. W.D.2002). This is because:

"In a trial without a jury, the judge is not only the trier of the facts but also the determinant of whether the plaintiff has shown a right to relief. It is for this reason that the motion for directed verdict, so apt in a jury case to differentiate the judge function as to whether the evidence is submissible from the jury function to find the facts and return a verdict under the instructions of the court, has no role or function in a trial to the court without a jury."

Id. (quoting City of Hamilton v. Public Water Supply Dist. No. 2, 849 S.W.2d 96, 100 (Mo.App. W.D.1993) (citations omitted)...