Irwin v. Dir. of Revenue

• Decision Date: 10 April 2012
• Docket Number: No. ED 94577.,ED 94577.
• Citation: 365 S.W.3d 266
• Parties: Thomas Patrick IRWIN, Respondent, v. DIRECTOR OF REVENUE, State of Missouri, Appellant.
• Court: Missouri Court of Appeals

365 S.W.3d 266

Thomas Patrick IRWIN, Respondent,

v.DIRECTOR OF REVENUE, State of Missouri, Appellant.

No. ED 94577.

Missouri Court of Appeals,

Eastern District,

Division Four.

April 10, 2012.

Jonathan H. Hale, Assistant Attorney General, Jefferson City, MO, for appellant.

Robert S. Adler, St. Louis, MO, for respondent.

PATRICIA L. COHEN, Presiding Judge.

Introduction

The Director of Revenue appeals the judgment of the Circuit Court of St. Louis County reinstating the driving privileges of Thomas Irwin (Driver). We reverse and remand.

Factual and Procedural Background

Following a June 15, 2008 arrest for driving while intoxicated (DWI), the Director suspended Driver's driving privileges. Driver filed a petition for a trial de novo in the Circuit Court of St. Louis County to review the license suspension.

At the beginning of the trial on January 8, 2010, the Director presented as evidence the results of Driver's breath test results and related records. Driver objected to the admission of the breath test results, contending that the breath test was improperly administered by a police officer whose certification to operate the equipment was issued by the Missouri Department of Health and Senior Services (DHSS) after a 2007 executive order (2007 Order) had transferred authority over the Breath Alcohol Program (BAP) from the DHSS to the Missouri Department of Transportation (MoDOT). The trial court stated that it would take Driver's objections with the case.

The Director presented the testimony of Officer Christopher Ayres. Officer Ayres stated that, on the night of June 15, 2008, he stopped Driver because he had observed Driver run a red light, swerve over the center line, and fail to use a turn signal. When Officer Ayres approached Driver's vehicle, he detected a moderate odor of alcohol and observed that Driver's eyes were bloodshot. Driver acknowledged that he had been drinking and offered to park his car and ask a friend for a ride home. Officer Ayres administered to Driver three field sobriety tests: horizontal gaze nystagmus test, walk and turn test, and one-leg stand test. Driver failed elements of all three tests. Officer Ayres also administered a preliminary breath test, which was positive for alcohol. Officer Ayres testified that, based upon the field sobriety tests, preliminary breath test, and his personal observations, he formed the opinion that Driver was intoxicated and arrested him.

Subject to Driver's earlier objection, Officer Ayres testified that, at the police station, he administered to Driver the breath test, which registered a blood alcohol content of .089 percent. Officer Ayres stated that, at the time he administered the breath test, he held a permit from the DHSS authorizing him to operate the breath test equipment, he followed the required checklist when he administered the test, and the equipment was functioning properly. Driver testified at trial and presented as an expert witness Dr. Terry Martinez, who testified about the reliability of field sobriety tests, his pharmaco-kinetic calculations of Driver's BAC, and the margin of error of the BAP breath test equipment.

The trial court entered its judgment and order on February 9, 2010. In its judgment, the trial court sustained Driver's objection to the admission of his breath test results and explained that the breath test results were inadmissible because, at the time Driver took the test, DHSS did not have the authority to administer the BAP.¹ Having found that Driver's breath test results were inadmissible, the trial court held that the Director had “failed to establish [Driver] had a blood alcohol content of .08% or higher,” and it ordered the Director to remove Driver's administrative suspension or revocation and reinstate his driving privileges. The Director appeals.

Standard of Review

Our review of the trial court's judgment reinstating driving privileges following an administrative suspension or revocation is, as in all court-tried cases, governed by Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). White v. Dir. of Revenue, 321 S.W.3d 298, 307–08 (Mo. banc 2010). “Thus, we will affirm the trial court's decision to reinstate driving privileges if it is supported by substantial evidence, it is not against the weight of the evidence, and it does not erroneously declare or apply the law.” Scheumbauer v. Dir. of Revenue, 350 S.W.3d 868, 870 (Mo.App. E.D.2011). This court reviews declarations of law de novo. Moore v. Dir. of Revenue, 351 S.W.3d 286, 287 (Mo.App. W.D.2011).

Discussion

In her point on appeal, the Director claims the trial court erred in excluding the breath test results and maintenance records because it erroneously declared and applied the law. Specifically, the Director contends that, because the transfer of authority over the BAP mandated by the 2007 Order did not occur, the DHSS remained the agency empowered to the run the Blood Alcohol Program. Thus, the Director argues that the trial court should have admitted Driver's breath test results as evidence that he was driving with a BAC in excess of the legal limit and upheld the suspension of his license. ²

The Director has the burden of establishing a prima facie case for suspension of a driver's license by presenting evidence that, at the time of the arrest: (1) the driver was arrested on probable cause for violating an alcohol-related offense; and (2) the driver's BAC exceeded the legal limit of .08 percent. Mo.Rev.Stat. § 302.505.1; see also White, 321 S.W.3d at 309 n. 11. The burden is on the Director to establish grounds for the revocation by a preponderance of the evidence. Mo.Rev.Stat. § 302.535.1; Vernon v. Dir. of Revenue, 142 S.W.3d 905, 909 (Mo.App. S.D.2004).

To establish that...