Devine v. Director of Revenue, State of Mo., 71188

• Decision Date: 16 December 1997
• Docket Number: No. 71188,71188
• Citation: 961 S.W.2d 87
• Parties: Robert D. DEVINE, Defendant/Appellant, v. DIRECTOR OF REVENUE, STATE OF MISSOURI, Plaintiff/Respondent.
• Court: Missouri Court of Appeals

Page 87

961 S.W.2d 87

Robert D. DEVINE, Defendant/Appellant, v. DIRECTOR OF REVENUE, STATE OF MISSOURI, Plaintiff/Respondent.

No. 71188.

Missouri Court of Appeals,

Eastern District,

Division One.

Dec. 16, 1997.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Feb. 9, 1998.

Application to Transfer Denied

March 24, 1998.

Sullivan and Associates, Robert W. Miller, Bridgeton, for Defendant/Appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., James A. Chenault, III, Sp. Asst. Atty. Gen., Mo. Dept. of Revenue, Jefferson City, for Plaintiff/Respondent.

PUDLOWSKI, Judge.

At 9:10 p.m. on 11 August 1995, Robert D. Devine (Devine) was stopped by Officer Paul Carroll (Officer) of the Charlack Police Department. Officer asked Devine to perform a series of field sobriety tests. After failing those tests, Officer arrested Devine at 9:20 p.m. Devine was handcuffed and placed in Officer's patrol car while Officer conversed with the tow truck operator. Officer drove Devine to the station and administered a breath test to him at 9:34 p.m.. The breathalyzer test registered Devine's blood alcohol content as 0.121 percent by weight.

Following Devine's arrest for driving a motor vehicle with a blood alcohol content in excess of 0.10 percent by weight, the Director of Revenue (Director) suspended his driving privileges. Devine petitioned the Circuit Court of Saint Louis County for a trial de novo. On 25 July 1996, the trial court judge affirmed the order of suspension. Devine appeals this judgment.

In reviewing the trial court's judgment, we will sustain its decision unless the decision was not supported by substantial evidence, it was against the weight of the evidence, or it erroneously declared or applied the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

In proceedings to suspend driving privileges, Director must lay a proper foundation to admit results of the blood alcohol test into evidence by showing that the test was performed: (1) by using techniques and methods approved by the Division of Health; (2) by an operator holding a valid permit; and (3) by equipment and devices approved by the Department. Sellenriek v. Director of Revenue, 826 S.W.2d 338, 340-41 (Mo. banc 1992). Devine contends that Director failed to meet these requirements in that the test did not follow approved techniques and methods of the Division of Health.

This Court recently interpreted the Division of Health's regulation regarding approved breath analyzers, chemical reagents and standards to determine the alcoholic content of expired air. In Mullins v. Director of Revenue, 946 S.W.2d 770, 773 (Mo.App. E.D.1997), we held that in order to comply with the Division of Health's Regulation 19 CSR 25-30.050, the material used for verification and calibration of the breathalyzer must "be certified by its manufacturer and that evidence of that certification accompany the maintenance report." During Devine's trial, the maintenance report was admitted over Devine's objection. The maintenance report showed the breathalyzer recently was verified and calibrated; however, there was no accompanying...