Johnson v. Dir. Revenue

• Decision Date: 28 October 2013
• Docket Number: No. SD 32408.,SD 32408.
• Parties: Jennifer JOHNSON, Petitioner–Respondent, v. DIRECTOR OF REVENUE, STATE of Missouri, Respondent–Appellant.
• Court: Missouri Court of Appeals

411 S.W.3d 878

Jennifer JOHNSON, Petitioner–Respondent,

v.DIRECTOR OF REVENUE, STATE of Missouri, Respondent–Appellant.

No. SD 32408.

Missouri Court of Appeals,

Southern District,

Division Two.

Oct. 28, 2013.

Rachel M. Jones of Jefferson City, MO, attorney for appellant.

Kyle E. Walsh and John M. Albright of Poplar Bluff, MO, attorney for respondent.

JEFFREY W. BATES, P.J.

The Director of Revenue (Director) appeals from a judgment reinstating the driving privileges of Jennifer Johnson (Johnson).¹ We affirm.

I. Factual and Procedural Background

On December 13, 2011, Johnson was arrested on suspicion of driving while intoxicated (DWI) by Officer D. Mustain of the Poplar Bluff Police Department. Johnson was transported to the police station and agreed to provide a breath sample. After observing her for 15 minutes to ensure that no smoking or oral intake of any material occurred, Officer Mustain administered a breath test on the Intoxilyzer 5000. At 9:19 p.m., the breath test instrument printed an evidence ticket stating “invalid sample.” Five minutes later, at 9:24 p.m., the officer administered a second breath test on the same instrument, which reported a result of .209% as Johnson's blood alcohol content (BAC).

The Director administratively suspended Johnson's driving privileges. Pursuant to § 302.535, Johnson filed a petition for trial de novo in the circuit court.²

On September 7, 2012, the trial de novo was held. The Director's evidence consisted solely of Exhibit A, which was a package of certified records from the Department of Revenue (DOR). These records included, inter alia, Officer Mustain's incident report, the alcohol influence report and the breath test results. Johnson's counsel objected to the admission of the .209% BAC test result because the second test was administered only five minutes after the first test. Counsel argued that Officer Mustain should have waited at least 15 minutes before administering the second breath test:

[JOHNSON'S COUNSEL]: [M]y objection is just to introduction of the subject test because the Intoxilyzer manual specifically states you need to wait 15—some manuals say 20—minutes in between tests, because the slope detector goes off if there's the presence of mouth alcohol. That's why an invalid sample comes in, not because of failure to blow properly or anything like that.

THE COURT: Response?

[DIRECTOR'S COUNSEL]: Judge, that has been a contention, but it's my understanding that case law is—and further, that Missouri Department of Health rules and regulations in that regard do not require an additional 15–minute observation period in that circumstance where an invalid sample reading has been had on the device.

And I would ask the Court to permit the parties leave to file a letter brief in this regard on that particular issue.

The court stated that it would “take this matter under advisement until October the 2nd, pending receipt of the letters and any evidentiary documents you want to submit as with regard to the Department of Health regulations or the Intoxilyzer.”

On September 17th, Johnson's counsel filed correspondence to the trial judge stating, in relevant part, as follows:

Please find enclosed with this letter a copy of Martin v. Director of Revenue. In this case, it was held that the evidence was sufficient to support a finding that a second alcohol breath test was unreliable. In the case attached, it states there was only a three (3) to six (6) minute waiting period between the tests after an invalid sample. In our case, there was only a five (5) minute waiting period between the first sample which came back invalid, and the second sample, which came back .209. Granted, we did not present expert testimony however, we did instruct the Court that the manual for the Intoxilyzer 5000 states there should be a 15 minute waiting period between a test that registers invalid and any subsequent breath alcohol test. I also argued to the Court that an invalid sample means mouth alcohol and that a 15 minute waiting period is required for a reliable BAC.

The Director did not submit a brief or any additional evidentiary materials to the trial court.

On October 2, 2012, the trial court issued its judgment reinstating Johnson's driving privileges. In relevant part, the judgment stated:

After presentation of evidence, the Court finds that the Petitioner's first BAC read-out was unreliable and not credible as it read “invalid sample”. The second sample was taken within five (5) minutes of the invalid sample. The Court finds that the officer conducting said breath test did not follow the Department of Health's regulations nor the Intoxilyzer 5000 User Manual.

This appeal followed.

II. Standard of Review

A person whose driving privileges are suspended or revoked by the DOR decision may file a petition for a trial de novo in circuit court. § 302.535.1. We review the trial court's judgment in a § 302.535 license suspension or revocation case like any other court-tried civil case. SeeWhite v. Director of Revenue, 321 S.W.3d 298, 307 (Mo. banc 2010). “In appeals from a court-tried civil case, the trial court's judgment will be affirmed 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.” Id. at 307–08;see alsoRule 84.13(d); Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). When evidence is contested by disputing a fact in any manner, an appellate court defers to the trial court's determination of credibility. See White, 321 S.W.3d at 308;Hinnah v. Dir. of Revenue, 77 S.W.3d 616, 620 (Mo. banc 2002); Rule 84.13(d)(2). “A trial court is free to disbelieve any, all, or none of that evidence.” White, 321 S.W.3d at 308. When the facts are not contested and the issue is one of law, our review is de novo, and no deference is given to the trial court's determination. Id. at 308–09;Hinnah, 77 S.W.3d at 620.

III. Discussion and Decision

The Director contends the trial court erred by reinstating Johnson's driving privileges because: (1) the court's decision resulted from an erroneous application or declaration of the law; and (2) the judgment is not supported by any evidence. We find no merit in either argument.

In order to suspend Johnson's license, the burden was upon the Director to prove by a preponderance of the evidence that: (1) Johnson was arrested on probable cause for violating an alcohol-related offense; and (2) Johnson's BAC exceeded the legal limit of .08 percent. See White, 321 S.W.3d at 309 n. 11; § 302.505.1; § 302.535.1. Thus, the Director bore the burden of proving that Johnson's BAC exceeded the legal limit of .08%. According to Exhibit A, the first breath test on the Intoxilyzer 5000 produced an evidentiary ticket stating “invalid sample.” Officer Mustain was not called as a witness, and nothing in Exhibit A explained what “invalid sample” meant. Johnson's counsel argued that: (1) “invalid sample” meant mouth alcohol was present; and (2) the Intoxilyzer 5000 manual required a second 15–minute waiting period to be observed before performing another test. Because that did not occur, Johnson's counsel argued that the second .209% BAC result was unreliable. While the second result may have been admissible pursuant to § 302.312.1 RSMo (2000), the trial court was not required to believe it. See, e.g., Tweedy v. Director of Revenue, 412 S.W.3d 389, 395–96, 2013 WL 4715669, *4 (Mo.App.E.D. filed September 3, 2013). The trial court kept the record open so the Director could submit the Intoxilyzer 5000 manual as evidence, but the Director did not do so. Therefore, the trial court could reasonably infer that the manual would have been unfavorable to the Director. See, e.g., Rohner v. Bi–State Development Agency, 728 S.W.2d 626, 628–29 (Mo.App.1987) (hospital's failure to produce a relevant portion of its procedure manual permitted plaintiffs to argue an adverse inference in closing arguments). Because Johnson contested the reliability of the second breath test result and the trial court decided that factual issue adversely to the Director, we defer to the trial court's determination. See White, 321 S.W.3d at 308;O'Rourke v. Director of Revenue, 409 S.W.3d 443, 448–50 (Mo.App.E.D.2013).

The Director, however, argues that the trial court's judgment resulted from an erroneous declaration or application of the law because Officer Mustain was not required to observe Johnson for another 15 minutes before performing the second breath test with the Intoxilyzer 5000. To support this argument, the Director cites cases and regulations addressing the foundational requirements for the admission of a breathalyzer test result into evidence. ³In our view, this argument is misdirected because it conflates the admissibility of evidence with the credibility of evidence. We see nothing in the record to indicate that the trial court excluded the .209% BAC breathalyzer test result. Instead, it appears the trial court simply did not believe that result was reliable.⁴ As noted above, we defer to that factual determination.

If the Director is arguing that the trial court had to believe the second breath test result was reliable, we disagree. In O'Rourke, the driver blew into the breathalyzer machine three times within 10 minutes. On the last attempt, the machine produced a .172% BAC result. At trial, the driver challenged the accuracy of the BAC result because the officer did not wait an additional 15 minutes between tests. The trial court found that the test result was not reliable. On appeal, the Director argued that the trial court's judgment resulted from an erroneous declaration or application of the law because no additional 15–minute observational period was legally required. The eastern district of this Court rejected that argument for reasons which are equally applicable to the case at

Director's position is that once he satisfies the prima facie foundational requirements for admission of the...