Henke v. Dir. of Revenue
| Decision Date | 15 September 2020 |
| Docket Number | No. ED 108287,ED 108287 |
| Citation | 611 S.W.3d 564 |
| Parties | William HENKE, Respondent, v. DIRECTOR OF REVENUE, State of Missouri, Appellant. |
| Court | Missouri Court of Appeals |
FOR APPELLANT: Eric Schmitt, Attorney General, Eric McDonnell, 301 West High Street, Jefferson City, MO 65105.
FOR RESPONDENT: Nathan T. Swanson, Matthew D. Fry, 120 South Central, Suite 130, St. Louis, MO 63105.
The Director of Revenue (Director) appeals the judgment of the trial court, which reinstated Respondent William Henke's (Henke) driving privileges after the Director had suspended them based on Henke's arrest for driving while intoxicated (DWI). The Director argues the trial court improperly excluded evidence of Henke's blood alcohol content (BAC) because the Director did not establish that the Intox EC/IR II breath analyzer used to determine Henke's BAC was manufactured or supplied by Intoximeters, Inc. in St. Louis, Missouri. We reverse.
On June 19, 2018, Officer Chris Sinnokrak (Officer Sinnokrak) of the O'Fallon Police Department responded to the scene of an accident, where a moving car had struck a parked vehicle, turned on its side, and caught fire. Officer Sinnokrak interviewed Henke at the scene, who admitted driving the vehicle with a passenger, Jessica Cory (Cory). Henke told Officer Sinnokrak that he did not know how the accident happened. Cory did not remember either. Both appeared intoxicated. Officer Sinnokrak smelled a strong odor of alcohol on Henke and observed him to have bloodshot, glassy eyes. Henke admitted he had been drinking vodka, and that he drank more than usual that day.
Officer Sinnokrak administered field sobriety tests, and Henke performed poorly on each. Officer Sinnokrak placed Henke under arrest. At the police department, Officer Sinnokrak administered a test of Henke's breath using an Intox EC/IR II breath analyzer. Officer Sinnokrak completed the accompanying blood alcohol test report form provided by the Department of Health and Senior Services (DHSS), which reflects that Henke's BAC was .153 percent.
The Director notified Henke it was suspending Henke's driving privileges, and Henke petitioned the trial court for a trial de novo . At trial, Henke objected to the admission of the breath test result, arguing that the Director failed to establish a foundation for admission of the test because the Director presented no evidence that the Intox EC/IR II utilized to collect Henke's breath sample was manufactured or supplied by Intoximeters, Inc. in St. Louis. Henke argued 19 CSR 25-30.050(1) requires that the Director establish not only that the police used an approved breath analyzer, but that such machine was manufactured or supplied by the company listed in the regulation. The trial court agreed and excluded the evidence of Henke's BAC. Accordingly, the trial court reversed the suspension of Henke's driving privileges. This appeal follows.
The Director's sole point on appeal is that the trial court erroneously interpreted 19CR 25.30.050(1) as containing a foundational requirement that the Director must establish the manufacturer or supplier of an approved breath analyzer used to determine a person's BAC in order to introduce the BAC test result into evidence. We agree.
On appeal from a court-tried case, we will 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." White v. Dir. of Revenue, 321 S.W.3d 298, 307-08 (Mo. banc 2010). The Director's point on appeal also involves interpretation of a section of the Missouri Code of State Regulations. The construction of an administrative rule or regulation is a legal question that we review de novo. Bartholomew v. Dir. of Revenue, 462 S.W.3d 465, 470 (Mo. App. E.D. 2015).
In order to support the suspension of Henke's driving privileges, the Director had to show by a preponderance of the evidence "that at the time of [Henke's] arrest: (1) there was probable cause for arresting [Henke] for violating an alcohol-related offense; and (2) [Henke's] BAC exceeded the legal limit of 0.08 percent." Id. at 469. The existence of probable cause for Henke's arrest for DWI is not at issue. Rather, the trial court found the Director had failed to establish Henke's BAC exceeded the legal limit because the trial court found the Director did not lay the proper foundation for admission of the breath test result here into evidence.
To lay a foundation for the admission of breath analyzer test results, the Director must establish that the test was performed: "(1) by 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." Carvalho v. Dir. of Revenue, 586 S.W.3d 262, 267 (Mo. banc 2019) (quoting Stuhr v. Dir. of Revenue, 766 S.W.2d 446, 449 (Mo. banc 1989) ). Here, the trial court found that the Director failed to establish only the third element, that the test of Henke's BAC was performed on equipment and devices approved by DHSS.
19 CSR 25-30.050 (2014)1 provides the following:
The trial court held that because the regulation specifies the manufacturer or supplier of each approved breath analyzer, in order for the BAC result to be admissible, the Director must prove not only that it used a specific type of breath analyzer named in the regulation, but also that it obtained the machine from a manufacturer or supplier listed in the regulation. The Director argues that establishing the manufacturer or supplier has no bearing on the reliability of the test results under the regulations, and that because the operators followed all regulations to ensure proper functioning of the Intox EC/IR II here, identifying it by name and serial number, the test results were admissible.
"The same principles we use to interpret statutes apply to our interpretation of administrative rules and regulations." Marquart v. Dir. of Revenue, 549 S.W.3d 56, 59 (Mo. App. E.D. 2018) (citing Bartholomew, 462 S.W.3d at 470 ). "Our goal is to ascertain the agency's intent and give effect thereto by considering the plain meaning of the words used in the regulation." Id. (quoting Gallagher v. Dir. of Revenue, 487 S.W.3d 24, 27 (Mo. App. E.D. 2016) ). In so doing, we "should take into consideration statutes involving similar or related subject matter when those statutes shed light on the meaning of the statute being construed." State v. Knapp, 843 S.W.2d 345, 347 (Mo. banc 1992). Specifically, "[w]hen the same or similar words are used in different places within the same legislative act and relate to the same or similar subject matter, then the statutes are in pari materia and should be construed to achieve a harmonious interpretation of the statutes." Id. ().
In addition to 19 CSR 25-30.050 identifying approved breath analyzers, 19 CSR 25-30.060 (2014) sets out an operational checklist for each approved breath analyzer. The stated purpose of the regulation is to provide such procedures "so that they can be introduced in court to show that operators of breath analyzers have adhered strictly to the operating procedures set forth and approved by [DHSS]." Subsection (6) addresses the Intox EC/IR II, stating that, "the procedures on the form incorporated within the instrument software shall be performed and the form shall be completed." Officer Sinnokrak completed the DHSS operational checklist form when he tested Henke's BAC. This form is entitled "Blood Alcohol Test Report – Intox EC/IR II," and it...
To continue reading
Request your trial
-
State ex rel. Schmitt v. Crane
...or related subject matter when those statutes shed light on the meaning of the statute being construed.’ " Henke v. Dir. of Revenue , 611 S.W.3d 564, 567 (Mo. App. E.D. 2020) (quoting State v. Knapp , 843 S.W.2d 345, 347 (Mo. 1992) ). At the relevant time, DOC was charged with a statutory d......
-
State ex rel. Schmitt v. Crane
... ... statute being construed.'" Henke v. Dir. of ... Revenue , 611 S.W.3d 564, 567 (Mo. App. E.D. 2020) ... (quoting State ... ...
-
City of Foley v. Dir., Mo. Dep't of Revenue
...cause of action. § 536.050. "The construction of an administrative rule or regulation is a legal question[.]" Henke v. Director of Revenue , 611 S.W.3d 564, 566 (Mo. App. 2020). The circuit court addressed the legal question raised by the City and concluded, as relevant to the aforesaid cla......