Gholson v. Director of Revenue, WD 64901.
| Decision Date | 16 January 2007 |
| Docket Number | No. WD 64901.,WD 64901. |
| Citation | 215 S.W.3d 229 |
| Parties | Steven D. GHOLSON, Respondent, v. DIRECTOR OF REVENUE, Appellant. |
| Court | Missouri Court of Appeals |
Bart L. Wooldridge, Boonville, for respondent.
The Director of Revenue appeals the circuit court's judgment reinstating Steven D. Gholson's driving license. The director had revoked Gholson's driving license under authority granted her by Section 302.505, RSMo Supp.2005. The basis on which the circuit court overturned the director's revocation is the central issue in this case. In an explanation of its judgment during a post-judgment hearing, the circuit court made clear that it ruled against the director on the ground that Gholson rebutted the director's prima facie case. It concluded that the testing officer had not watched Gholson face-to-face during the entire, requisite 15-minute observation period before administering a breath test. We reverse the circuit court's judgment.
To establish a prima facie case, the director's burden was to establish by a preponderance of the evidence that the arresting officer had probable cause to arrest Gholson for driving while intoxicated and that Gholson's blood alcohol level exceeded the legal limit. Section 302.505.1. Because Gholson stipulated that he was arrested on probable cause, the director's burden was to establish only that Gholson's blood alcohol concentration was at least .08 percent by weight. She endeavored to meet this burden by presenting evidence of the results of a breathalyzer test.
For the results of a breathalyzer test to be admitted into evidence, "the director must establish the test was performed: (1) following the approved techniques and methods of the division of health, (2) by an operator holding a valid permit, (3) on equipment and devices approved by the division." Coyle v. Director of Revenue, 181 S.W.3d 62, 64 (Mo. banc 2005) (footnote omitted). When the director establishes these three factors, she has made a prima facie case for driving while intoxicated, and "the driver is entitled to present rebuttal evidence that raises a genuine issue of fact regarding the validity of the blood alcohol test results." Id. at 65.
Gholson attacked the validity of the breathalyzer test results by showing that a qualified individual did not watch him face-to-face for at least 15-minutes before the test as required by 19 CSR 25-30.060 and by testifying that he had placed chewing gum in his mouth during this time.1 The evidence established that Trooper Brent Drummond arrested Gholson for driving while intoxicated and took him to the Cooper County jail for testing. At the jail, Drummond advised Gholson of the implied consent law and asked him to take a breath test. Gholson consented to take the test, at 1:25 A.M., and Drummond administered the test 23 minutes later. The breathalyzer test indicated that Gholson's blood alcohol concentration was .101 percent. The parties dispute what happened during the 23 minutes between Gholson's consenting to the test and Drummond's administering the test.
Gholson testified that, between five and ten minutes before the test, he put a piece of gum in his mouth. Before the test, he said, he stood and asked Drummond for permission to use a restroom and announced that he had put gum in his mouth. According to Gholson, Drummond refused to allow him to use a restroom but did not respond to his comments about gum. Brad Drew, a county detention employee sitting in the observation room with Gholson and Drummond testified that he heard Gholson say that he had gum in his mouth but that he did not see Gholson put gum in his mouth.
Drummond testified that Gholson did not put anything in his mouth during the 23 minutes and that he did not hear Gholson say anything about gum. Drummond acknowledged that he was doing paperwork during the 23 minutes and did not watch Gholson continuously, face-to-face, during that time.
In overturning the director's revocation on the ground that Gholson rebutted the director's prima facie case, the circuit court stated in its judgment:
The Court, having considered the evidence adduced, finds the matter in favor of Petitioner Steven D. Gholson and against Respondent Missouri Department of Revenue, in that [Gholson] rebutted [the director's] prima facie case by showing that [Gholson] was not observed at all times during the 15-minute observation period prior to the administration of a Blood Alcohol Content Test and that [Gholson] had an opportunity to place chewing gum in his mouth during that period. The Court finds the provisions of Missouri Department of Health Regulation 19 CSR 25-30.060 were not strictly followed as required by Carr v. Director of Revenue, 95 S.W.3d 121 (Mo. App. W.D.2002).2
In response to the director's request that the circuit court clarify in its judgment whether or not it believed that Gholson had put gum in his mouth during the 23-minute observation period, the circuit court convened a hearing. During this hearing, the circuit court explained at length the basis for its judgment:
THE COURT: [T]here's no question that my ruling was based upon my interpretation of [Carr v. Director of Revenue, 95 S.W.3d 121 (Mo.App.2002)]. And here's the way I read the case[.] . . . Well, first in the Carr case they talk about the rule that requires the observation for fifteen minutes. Then they go on and say . . . in determining whether Mr. Carr rebutted the Director's prima facie case, the court was free to disregard this evidence and believe Mr. Carr's evidence on this issue. As such, the issue does not turn on credibility, but whether the evidence was such that the trial court could have reasonably inferred that Mr. Carr had in fact gone unobserved for the fifteen minutes preceding his test.
And then it goes on to say the Director disputed this by saying Mr. Carr offered no evidence that the butterscotch actually contaminated the test. But then the court says, to the extent that they hold that a finding by the trial court that the observation period were not followed is an insufficient basis by itself as a matter of law for the trial court to reinstate an individual's driver's license, we decline to follow the Eastern District[.]
And then they go on to say that the administrative burden on the State, to follow the observation period, is far less significant than the burden which would be on the defendant to prove . . . that the failure to observe contaminated the test results.
[Y]es, my reading of Carr is that[,] although there was evidence that he placed something in his mouth, butterscotch or whatever, I don't read Carr as saying that we find in fact that he did put this in his mouth. I read Carr as saying, the fact that you have this fifteen-minute requirement and the court found that it was not followed was, in and of itself, enough to reinstate the petitioner's license. That's the way I read Carr, rightly or wrongly.
That's . . . the way I'm holding. Isn't it better, if you want some law on that, to bring it up on that basis?
[DIRECTOR'S ATTORNEY]: Well, my concern is that on appeal, and particularly since I didn't request findings of fact upfront—which in hindsight I probably should have—but on appeal the facts are generally deemed to be held in accordance with the result reached. And the Court of Appeals could readily say, well, the court could have found that he did in fact put gum in his mouth, and so, ergo under Carr, Revenue loses, without getting in to interpret it any further.
I do want to point the Court's attention to one part of Carr.... But it's basically the last full paragraph of the decision, where they talk about, you know, we cannot—make no mistake, you know, we cannot say that the waiting period requirements were not in fact observed by the police, only the trial court can make that finding. But if as evident in our case such a finding is made, no further evidence need to be adduced in order to reinstate the driving privilege.
You know, I think they're saying, you know, there it's like, okay, the court's judgment was consistent with Mr. Carr having put the butterscotch in his mouth and smoked the cigarette in the holding cell within fifteen minutes of the test.
THE COURT: But they don't really say that, do they? They don't really say that we find that the trial court must— that the trial court in fact found that he did have it. I mean, aren't they saying that the court simply found that the fifteen-minute observation period wasn't strictly observed and that's enough?
....
[The Director's] position, as I would understand it, is if [s]he takes this case up that the Court of Appeals is going to say, ["W]ell, that judge didn't say whether he thought the gum was in— didn't really make a finding whether he thought the gum was in the mouth or not. He simply said that there was an opportunity for it to be...
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