McGough v. Dir. of Revenue

• Decision Date: 26 May 2015
• Docket Number: No. ED 101870,ED 101870
• Citation: 462 S.W.3d 459
• Parties: Daniel R. McGough, Respondent, v. Director of Revenue, State of Missouri, Appellant.
• Court: Missouri Court of Appeals

462 S.W.3d 459

Daniel R. McGough, Respondent

v.Director of Revenue, State of Missouri, Appellant.

No. ED 101870

Missouri Court of Appeals, Eastern District, DIVISION ONE.

FILED: May 26, 2015

Chris Koster, P.O. Box 475, Jefferson City, MO 65105, for appellant.

John M. Lynch, 222 S. Meramec, Suite 300, Clayton, MO 63105, for respondent.

Opinion

CLIFFORD H. AHRENS, Judge

The Director of Revenue of the State of Missouri (“Director”) appeals from the judgment of the trial court that ordered the Director to remove the administrative-alcohol suspension from Daniel McGough's (“Driver”) driving record and to reinstate Driver's driving privileges. We reverse and remand.

On October 19, 2012, Officer Scott Weeke of the O'Fallon Police Department responded to the report of a fight at a bar. As Officer Weeke approached the bar, dispatch told him that the parties involved in the fight were leaving the scene in two separate vehicles, a white Dodge Ram and a black Buick. Officer Weeke saw a white Dodge Ram driving through the parking lot of the bar. He turned on the overhead emergency lights on his police car, but the vehicle continued to proceed toward the exit of the parking lot. Officer Weeke then gave two bursts from his air horn and a brief burst from the emergency siren of his police vehicle. The Dodge Ram failed to stop, exited the parking lot, and headed north on Weldon Spring Road. Officer Weeke fully activated the siren and followed the Dodge Ram. The driver of the vehicle did not stop, but rather turned east on Crusher Road and continued east until he reached the intersection with MO K, where he pulled into the lot of a service station and stopped.

Officer Weeke immediately arrested the operator of the Dodge Ram, Driver. Officer Weeke noted that there was a strong smell of alcohol coming from Driver, and that his eyes were watery, bloodshot, glassy, and staring. Driver stated that he had one beer. Officer Weeke told Driver to walk to the rear of the vehicle and lean against the bumper. He observed that Driver swayed as he walked to the back of the vehicle, and almost fell while trying to lean against the bumper of the Dodge Ram.

Officer Weeke arrested Driver for driving while intoxicated and took him to the police station. He informed Driver about Missouri's Implied Consent law. Driver agreed to take a breath test to determine his blood alcohol content (“BAC”). The breath test indicated that Driver had a BAC of 0.172 percent, substantially above the legal limit for intoxication. The breathalyzer used to test Driver was checked on September 29, 2012. Maintenance was performed using a single simulator solution at 0.10 percent, and the maintenance report showed that the breathalyzer was functioning within established parameters.

Director suspended Driver's driving privileges after an administrative hearing. Driver filed a petition for a trial de novo from the administrative suspension of his driving privileges in the Circuit Court of St. Charles County, Missouri on June 10, 2013.

The principal issue at the June 19, 2014 trial was the admission of Director's Exhibit A, which included Officer Weeke's alcohol influence report, the breathalyzer maintenance report, the breathalyzer test result and supporting documents. Driver made an objection to the admission of Exhibit A.¹ The trial court admitted Exhibit A into evidence with the exception of the breathalyzer test result, which it deferred ruling on.

The trial court issued a judgment on July 9, 2014. It found that between the date of Driver's arrest and time of the hearing that the law “positively changed to mandate the breath analyzer

be calibrated at three values” and that Director merely presented evidence that a single standard simulator solution was used for a single value, 0.10 percent, and presented no evidence of the use any other standard simulator solutions. The trial court found that Director failed to present sufficient credible evidence of compliance with the state regulations and with § 577.020.3 RSMo (Cum.Supp. 2011) and sustained Driver's “timely objection.”² The trial court found that Director failed to meet the burden of providing sufficient credible evidence that Driver drove with a BAC at or above 0.08 percent. It specifically did not address the issue of probable cause. The trial court found in favor of Driver and ordered Director to remove immediately the administrative-alcohol suspension from Driver's driving record and to reinstate his driving privileges to the extent otherwise allowable by law.³

Director now appeals from the trial court's judgment of July 9, 2014.

Director raises two points on appeal. To facilitate our analysis, we first will address Director's second point. In her second point relied on, Director contends that the trial court misapplied the law in finding that maintenance on the breathalyzer was not performed in compliance with DHSS regulations in effect at the time of trial because DHSS regulations provide that maintenance reports shall be considered valid if performed in compliance with the regulations in effect at the time that the maintenance actually was done. Director argues that the maintenance report of the breathalyzer was completed in compliance with the regulations in effect when the maintenance was performed, including the regulation specifying that only one simulator solution need be used when performing a calibration check of the breathalyzer.

We review a trial court's judgment reinstating driving privileges following an administrative suspension or revocation under the standard of Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). White v. Director of Revenue, 321 S.W.3d 298, 307–08 (Mo. banc 2010). This Court will affirm the decision of the trial court if it is supported by substantial evidence, it is not against the weight of the evidence, and it does not erroneously or declare or apply the law. Id. We review declarations of law de novo . Moore v. Director of Revenue, 351 S.W.3d 286, 287 (Mo.App.2011).

It is the Director's burden to establish a prima facie case for suspension of a driver's license by introducing evidence that at the time of a driver's arrest: (1) there was probable cause for arresting the driver for violating an alcohol-related offense; and (2) the driver's BAC exceeded the legal limit of 0.08 percent. § 302.505.1; White, 321 S.W.3d at 309 n. 11. It is the Director's burden to establish a basis for the revocation or suspension by a preponderance of the evidence. § 302.535.1; Irwin v. Director of Revenue, 365 S.W.3d 266, 268 (Mo.App.2012).

The Director may introduce evidence of a breathalyzer test to establish that a driver's BAC exceeded the legal limit. Irwin, 365 S.W.3d at 268–69. To lay a foundation for admission of the breathalyzer test into evidence, the Director must establish that the test was performed: (1) using 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 of Health. Id. at 269.

The question of law at issue is whether, under the applicable regulations, the breathalyzer had to be tested one time at one concentration or at three concentrations. Administrative rules and regulations are interpreted under the same principles of construction as statutes. Beverly Enterprises–Missouri, Inc. v. Department of Social Services, Division of Medical Services, 349 S.W.3d 337, 352 (Mo.App.2008) ; Trumble v. Director of Revenue, 985 S.W.2d 815, 819 (Mo.App.1998). Words are given their ordinary, plain meaning. Beverly Enterprises, 349 S.W.3d at 352. Statutory interpretation is a question of law subject to de novo review. Bender v. Director of Revenue, 320 S.W.3d 167, 169 (Mo.App.2010).

For breathalyzer results to be admissible, the machine used to measure the level of alcohol has to be properly maintained and tested. At the time of Driver's arrest on October 19, 2012, the pertinent regulation was 19 CSR 25–30.051 (2004), which provided that:

(1) Standard simulator solutions, used to verify and calibrate evidential breath analyzers

at the 0.10% or 0.100% level, shall be solutions from approved suppliers.

(2) Standard simulator solutions, used to verify and calibrate evidential breath analyzers

at the 0.04% or 0.040% level, shall be solutions from approved suppliers.

...

(4) Maintenance reports using Intoximeter standard simulation solution completed prior to the effective date of this rule shall be considered valid if the maintenance report was completed in compliance with the rules in effect at the time the maintenance was conducted.

The breathalyzer used on Driver was tested on September 29, 2012, using a single simulator solution as required by the regulation then in force.

By the time that Driver went to trial in June 2014, 19 CSR 25–30.051 had been amended twice: on November 30, 2012 (effective December 30, 2012) and on January 29, 2014 (effective February 28, 2014). The regulation in effect at the time of trial provided in relevant part that:

(1) Standards used for the purpose of verifying and calibrating breath analyzers

shall consist of standard simulator solutions or compressed ethanol-gas standard mixtures.

(2) Standard simulator solutions, used to verify and calibrate evidential breath analyzers

, shall be solutions from approved suppliers. The standard simulator solutions used shall have a vapor concentration within five percent (5%) of the following values:

(A) 0.10%;

(B) 0.08%; or

(C) 0.04%.

...

(8) Maintenance reports completed prior to the effective date of this rule shall be considered valid under this rule if the maintenance report was completed in compliance with the rules in effect at the time the maintenance was conducted.

The regulation in effect at the time of Driver's trial in June 2014 included the savings clause provision in 19 CSR 25–30.051(8) (2014). See id. 19 CSR 25–30.051(8) (2014) provides that a maintenance report done prior to the date that the current regulation went into effect, ...