Krtek v. Director of Revenue, State of Mo.

• Decision Date: 31 July 1998
• Docket Number: No. 21884,21884
• Citation: 975 S.W.2d 468
• Parties: Curtis E. KRTEK, Petitioner-Respondent, v. DIRECTOR OF REVENUE, STATE OF MISSOURI, Respondent-Appellant.
• Court: Missouri Court of Appeals

Page 468

975 S.W.2d 468

Curtis E. KRTEK, Petitioner-Respondent, v. DIRECTOR OF REVENUE, STATE OF MISSOURI, Respondent-Appellant.

No. 21884.

Missouri Court of Appeals,

Southern District,

Division Two.

July 31, 1998.

Motion for Rehearing or Transfer Denied

Aug. 24, 1998.

Jeremiah W. (Jay) Nixon, Atty. Gen., Craig F. Martin, Asst. Atty. Gen., Jefferson City, for appellant.

Ralph W. Gilchrist, Bolivar, for respondent.

BARNEY, Judge.

The Director of Revenue (Director) appeals from the circuit court's judgment which reinstated the driving privileges of Curtis E. Krtek (Curtis). The Department of Revenue suspended Curtis' driving privileges pursuant to section 302.505 after he was arrested for driving while intoxicated. ¹ The Department of Revenue upheld the suspension following an administrative hearing. See § 302.530. Curtis sought a trial de novo pursuant to section 302.535 in the Polk County Circuit Court. ² Following the trial, the circuit court ordered the Director to remove the suspension from Curtis' driving record and to reinstate his driving privileges. We affirm.

The judgment of the trial court will be affirmed by this Court unless there is no substantial evidence to support it, it is against the manifest weight of the evidence, or unless it erroneously declares or applies the law. Green v. Director of Revenue, 961 S.W.2d 936, 938 (Mo.App.1998).

On January 1, 1997, at approximately 1:12 a.m., City of Bolivar Police Officer Scott Boyd observed Curtis operating a 1991 Chevrolet truck in Bolivar, Polk County, Missouri. Officer Boyd observed Curtis make an unusually wide turn onto Albany Street and almost strike the curb on the opposite side of the street. After Curtis "jerked" his vehicle into the correct lane of travel, Officer Boyd activated the emergency lights on his patrol car, whereupon Curtis stopped his vehicle.

Officer Boyd approached the vehicle and noted a strong odor of an intoxicant emanating from Curtis and that his eyes were bloodshot and glassy and that his speech was slurred. When asked whether he had been consuming alcohol, Curtis responded "just a few."

Officer Boyd instructed Curtis to perform several field sobriety tests. Curtis failed to satisfactorily perform all of them, except for the "one-legged stand."

Convinced that he had probable cause to arrest Curtis for driving while intoxicated, Officer Boyd informed Curtis of his Miranda rights and transported him to the Polk County Sheriff's Office. While at the sheriff's office, a breath analyzer test was administered to Curtis by City of Bolivar Police Officer Sam Brothers. Officer Brothers is a qualified Type III breath analysis operator. He is authorized to administer the BAC Verifier test and the BAC Data Master test. Officer Brothers administered the BAC Data Master test to Curtis.

Officer Brothers testified that he read the "Implied Consent Law" ³ to Curtis at 1:31 a.m. Curtis expressly consented to the administration of the breath analyzer test. The first test was administered to Curtis at 1:44 a.m. However, the first test was aborted because it detected the presence of "mouth alcohol." It appears from the "Evidence Ticket" printout contained in the Legal File that a second breath analyzer test was administered to Curtis by Officer Brothers at 1:50 a.m. Officer Brothers testified that Curtis registered a .16 blood alcohol content the second time the test was administered. Curtis' driving privileges were thus suspended.

The administrative hearing was held by the Missouri Department of Revenue on February 21, 1997. On February 25, 1997, the Missouri Department of Revenue issued its findings of fact and conclusions law, sustaining the suspension of Curtis' driving privileges. In his petition for trial de novo, Curtis maintained that there was no evidence of a "timely or valid chemical test ... performed pursuant to law in such cases ..." and the "[b]lood test was not timely according to statutes and the results thereof were invalid and void."

On August 4, 1997, the circuit court entered its judgment which set aside the decision of the Department of Revenue and reinstated Curtis' driving privileges.

The trial court did not issue any findings of fact or conclusions of law in support of its judgment. "Because no findings of fact were asked for or made, we consider all fact issues as having been found in accordance with the result." Edwards v. Director of Revenue, 769 S.W.2d 483, 484 (Mo.App.1989); Scott v. Director of Revenue, 755 S.W.2d 751, 752 (Mo.App.1988); see also Rule 73.01(a)(3), Missouri Court Rules (1998).

On appeal to this Court, the Director maintains in its sole assignment of error that the trial court erred in setting aside the suspension of Curtis' driving privileges because the second breath analyzer test administered to Curtis was valid in that the Department of Health's regulations on breath analyzer tests do not require the administering officer to observe an additional 15-minute waiting period before administering a second test if the first test detects the presence of mouth alcohol. ⁴

We note that Missouri Department of Health regulation 19 CSR 30.060, Form # 7, which the Director introduced and which was admitted in evidence in this case, mandates that the suspect be "observed for at least 15 minutes" immediately preceding the administration of a breath analyzer test and that there be "no smoking or oral intake of any material during this time; if vomiting occurs, start over with the 15 minute observation period." See Green, 961 S.W.2d at 939.

The Director extrapolates from the trial court's judgment, which contains no findings of fact or conclusions of law, that the trial court based its judgment on the theory that the regulations relative to breath analyzer tests required Officer Brothers to have observed Curtis for a second 15-minute observation period before administering the second test after the first test detected "mouth alcohol." See 19 CSR 25-30.060. The Director asserts that the regulations do not require such a procedure. ⁵ While the trial court may have indeed reached its judgment as the Director asserts, we need not resolve that issue. We discern from the record that there is substantial evidence to support a finding that the trial court based its decision on the theory that neither Officer Brothers nor anyone else observed Curtis for an initial 15-minute observation period prior to administering either test. "[W]e consider all fact issues as having been found in accordance with the result" reached by the trial court when no findings of fact or conclusions of law are requested or entered. See Edwards, 769 S.W.2d at 484.

Officer Brothers testified that he was not the arresting officer. Officer Brothers met Curtis at the police station for the purpose of administering a breath analyzer test. He read the Implied Consent Law to Curtis at 1:31 a.m. When asked how much time elapsed between meeting Curtis and reading the Implied Consent Law, Officer Brothers responded "I don't recall the time lapse there."

Officer Brothers testified that he administered the first breath analyzer test to Curtis at 1:44 a.m. That was 13 minutes after Officer Brothers read the Implied Consent Law to Curtis. There was no...