Hansen v. Director of Revenue
| Decision Date | 25 July 2000 |
| Citation | 22 S.W.3d 770 |
| Parties | (Mo.App. E.D. 2000) . Marilyn Groves Hansen, Appellant, v. Director of Revenue, State of Missouri, Respondent. Case Number: ED76423 Missouri Court of Appeals Eastern District Handdown Date: 0 |
| Court | Missouri Court of Appeals |
Appeal From: Circuit Court of St. Louis County, Hon. Robert S. Cohen
Counsel for Appellant: Carl F. Kohnen
Counsel for Respondent: Evan J. Buchheim
Opinion Summary: Marilyn Groves Hansen appeals from the trial court's order and judgment sustaining the decision of the Director of Revenue to suspend her driving privileges for driving while intoxicated. Hansen alleges that, although she was observed for fifteen minutes prior to a subsequently invalidated breath analysis test, the results of a second test should be inadmissible because the administering Officer did not observe Hansen for an additional fifteen minutes.
AFFIRMED.
Division One holds: The record does not show that Hansen smoked, vomited, or placed anything in her mouth for fifteen minutes prior to the administration of the second breath analysis test. The test was properly admitted to prove that Hansen's blood alcohol content exceeded the legal limit.
Marilyn Groves Hansen (hereinafter "Hansen") appeals from an order and judgment in the St. Louis County Circuit Court sustaining the decision of the Director of Revenue (hereinafter "the Director") to suspend her driving privileges for driving while intoxicated. We affirm the judgment of the trial court.
Administration of the breath analysis test
On December 15, 1998, Officer Mike Monticelli arrested Hansen for driving while intoxicated. While at the police station, Officer Monticelli administered a breath analysis test to Hansen in compliance with the Department of Health (hereinafter "Department") Regulations. Pursuant to Regulation 19 CSR 25-30, Officer Monticelli observed Hansen for at least fifteen minutes before administering the test. Officer Monticelli testified that Hansen did not smoke, vomit, or orally intake anything during this observation period. The results were deemed invalid because Hansen leaned on the testing machine and pulled the mouthpiece out of the tube.
Officer Monticelli administered a second test approximately six minutes after the first test. He testified that while preparing the breathalyzer for the second test he did not directly observe Hansen. Officer Monticelli and Hansen remained in the same room during this period, and no one else entered the room. According to the second test, Hansen's blood alcohol content (BAC) exceeded the legal limit. The results of the second test formed the basis for the suspension of Hansen's driving privileges.
Department Regulations governing breath analysis
Department Regulation 19 CSR 25-30.011(5) states that "breath analyzers shall be operated strictly in accordance with the procedures set forth in 19 CSR 25-30.060." To determine blood alcohol levels, 25-30.011(5)(A) requires an operator administering a breath analysis test to complete an operational checklist and certification section on forms that correspond to the type of testing machine employed. Regardless of the type of machine, under 19 CSR 25-30.060, the initial step in each checklist states that the subject must be observed for at least fifteen minutes prior to the test. The observation period is designed to ensure that the subject does not smoke, vomit, or orally intake any item which may taint the test results. The remaining checklist steps make certain the correct operating procedure has been followed. The last section requires the operator to certify that the test was administered without deviation from the specified procedure.
Hansen's claim
Hansen claims 19 CSR 25-30 mandates that a testing officer observe the subject receiving a breath test for at least 15 minutes immediately preceding the test. Hansen reasons that the results of the second breath test should be inadmissible because Officer Monticelli did not follow this mandate. The Director of Revenue (hereinafter "the Director") concedes Officer Monticelli did not observe Hansen for fifteen minutes immediately preceding the second test, but claims that the purpose of the rule was served by the first fifteen-minute observation period. The Director argues that requiring a second fifteen-minute observation period in the absence of any evidence that the subject smoked, vomited, or orally took in a substance that would taint the test results imposes a requirement unnecessary to ensure that the test was reliable.
Our review of a trial court's judgment upholding the administrative suspension of driving privileges is governed by Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Duffy v. Director of Revenue, 966 S.W.2d 372, 376 (Mo.App. W.D. 1998). We 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. Duffy, 966 S.W.2d at 376. We view the evidence and all necessary inferences based on the evidence in the light most favorable to the judgment. Id. at 379. In a driver's license revocation proceeding, the trial court is accorded wide discretion on factual issues and the conclusions that follow. Id.
In order to suspend an individual's driving privileges the Director must show by a preponderance of the evidence that the driver was arrested on probable cause of driving while intoxicated, and that the driver's BAC surpassed the legal limit of .10% at the time of arrest. Rogers v. Director of Revenue, 947 S.W.2d 475, 476 (Mo.App. E.D. 1997). When the Director makes a prima facie case, the burden shifts to the driver to rebut the prima facie case by a preponderance of the evidence. Guccione v. Director of Revenue, 988 S.W.2d 649, 652 (Mo.App. E.D. 1999). To lay a proper foundation for admission of the results of a breathalyzer test to prove a driver's BAC, the Director must demonstrate the test was performed: (1) by following the approved techniques and methods of the Department of Health; (2) by an operator holding a valid permit; and (3) on equipment and devices approved by the Department of Health. Stuhr v. Director of Revenue, 766 S.W.2d 446, 449 (Mo. 1989). The failure to properly observe a suspect for the required fifteen minute period falls within the first requirement.
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