Orton v. Director of Revenue

• Decision Date: 30 August 2005
• Docket Number: No. WD 64443.,WD 64443.
• Citation: 170 S.W.3d 516
• Parties: Steven K. ORTON, Respondent, v. DIRECTOR OF REVENUE, Appellant.
• Court: Missouri Supreme Court

170 S.W.3d 516

Steven K. ORTON, Respondent, v. DIRECTOR OF REVENUE, Appellant.

No. WD 64443.

Missouri Court of Appeals, Western District.

June 30, 2005.

Motion for Rehearing and/or Transfer to Supreme Court Denied August 30, 2005.

COPYRIGHT MATERIAL OMITTED

James A. Chenault, III, Jefferson City, MO, for appellant.

Jeffrey S. Eastman, Gladstone, MO, for respondent.

Before EDWIN H. SMITH, C.J., ROBERT G. ULRICH and PATRICIA BRECKENRIDGE, JJ.

ROBERT G. ULRICH, Judge.

The Director of Revenue appeals the trial court's judgment setting aside the Director's administrative suspension of Steven Orton's driving privileges under section 302.505.1.¹ The Director claims that the trial court erred in setting aside the suspension and reinstating Mr. Orton's driving privileges because she established a prima facie case for suspension, which Mr. Orton failed to rebut. The judgment is reversed, and the case is remanded with directions.

Factual and Procedural Background

Steven Orton was stopped by Detective Charles Wood of the Platte County Sheriff's Department around midnight on May 18, 2001, after Detective Wood observed Mr. Orton's vehicle drifting across the centerline and the fog line on the right side of the road. Upon approaching the vehicle, the officer detected a strong scent of alcohol. Mr. Orton admitted to drinking four beers earlier that evening.

The officer administered three field sobriety tests. Mr. Orton showed all six signs of intoxication when administered the horizontal gaze nystagmus test. During the walk and turn test, Mr. Orton was unable to keep his balance during the officer's instructions; started the test before the instructions were completed; and during the test, stepped off the line, failed to touch heel to toe, used his arms for balance, and made an improper turn. During the last test, the one leg stand, Mr. Orton swayed while balancing and put his foot down once.

Mr. Orton was arrested for driving while intoxicated. A breath test showed Mr. Orton's blood alcohol content was .110. The Director subsequently suspended Mr. Orton's driver's license under section 302.505. Following an administrative hearing in which the suspension was upheld, Mr. Orton sought a trial de novo in the circuit court under section 302.535. At the beginning of trial, Mr. Orton filed a request for findings of fact under Rule 73.01(c) identifying four specific questions.

At trial, the Director presented the testimony of the arresting officer, Detective Wood, and Mr. Orton's breath test results. Mr. Orton presented the testimony of three witnesses. Patrick Clark, a sergeant with the Platte County Sheriff's Department, testified about maintenance of the breathalyzer and administration of field sobriety tests. William Taylor, a field sobriety test instructor, also testified about the protocol for administering field sobriety tests. Finally, John Zettl, a forensic toxicologist, testified about the breath testing procedure employed in Missouri and the accuracy and precision of the breath test results. Mr. Zettl opined that a breath test result obtained using the Missouri procedure would not be accurate or reliable to a reasonable degree of scientific certainty.

Following trial, the trial court entered judgment upholding the administrative suspension of Mr. Orton's driving privileges. This court reversed the judgment holding that the trial court failed to make required findings of fact and remanded the case to the trial court. Orton v. Dir. of Revenue, 131 S.W.3d 827, 830-31 (Mo.App. W.D.2004). No additional evidence was presented on remand. The trial court entered judgment, which included the following findings of fact:

1. Is the breath test result obtained herein accurate to a reasonable degree of scientific certainty?

A. No

2. Is the breath test result obtained herein reliable to a reasonable degree of scientific certainty?

A. No

3. Does the evidentiary breath testing equipment and protocol utilized assume a breath temperature of 34 Celsius plus or minus .2 Celsius?

A. Yes 4. Is a breath temperature of 34 Celsius plus or minus .2 Celsius certain to a reasonable degree of scientific certainty?

A. Vague question

The trial court further found that Mr. Orton "was arrested upon probable cause that he was driving in violation of an alcohol related offense, however [Mr. Orton] is found NOT to have been driving with a BAC of at least .10 percent by weight." The trial court thus ordered that the Director' administrative suspension of Mr. Orton's driver's license be set aside and held for naught. This appeal by the Director followed.

In her sole point on appeal, the Director claims that she established a prima facie case for suspension of Mr. Orton's driver's license, which Mr. Orton failed to rebut.

Standard of Review

Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976), governs review of a driver's license suspension or revocation case. Walker v. Dir. of Revenue, 137 S.W.3d 444, 446 (Mo. banc 2004). As such, the judgment of the trial court will be affirmed on appeal 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.; Murphy, 536 S.W.2d at 32. Appellate authority defers to the trial court's determination of credibility. Walker, 137 S.W.3d at 446.

Section 302.505 authorizes the suspension or revocation of a person's driver's license for driving while intoxicated. It provides in pertinent part:

The department shall suspend or revoke the license of any person upon its determination that the person was arrested upon probable cause to believe such person was driving a motor vehicle while the alcohol concentration in the person's blood, breath, or urine was ten-hundredths of one percent or more by weight....

§ 302.505.1. A driver aggrieved by a decision of the department may seek a trial de novo. § 302.535.1; Verdoorn v. Dir. of Revenue, 119 S.W.3d 543, 545 (Mo. banc 2003). At trial, the burden of proof is on the Director to establish grounds for the suspension or revocation by a preponderance of the evidence. Id. Applying the statutory scheme, the Director must initially present evidence to establish (1) probable cause to arrest the driver for violating an alcohol related offense and (2) the driver's blood alcohol concentration of .10 percent or greater. Verdoorn, 119 S.W.3d at 545. "This evidence creates a presumption that the driver was intoxicated." Id.

Blood Alcohol Content

In her sole point on appeal, the Director challenges the trial court's finding that Mr. Orton's BAC was not .10 or more. She contends that Mr. Orton failed to adduce sufficient evidence to rebut her prima facie case that Mr. Orton was legally intoxicated.²

Breathalyzer test results are essential to establish a prima facie case under section 302.505. Lewis v. Lohman, 936 S.W.2d 582, 585 (Mo.App. W.D.1996). A Breathalyzer is generally accepted as a reliable device for the measurement of blood alcohol content. Id. The Director can make a prima facie case based on a breath test only if she shows that the test was "performed according to the methods and devices approved by state department of health by a licensed medical personnel or by a person possessing a valid permit issued by the state department of health for this purpose." § 577.026.1, RSMo 2000. See also Robison v. Dir. of Revenue, 837 S.W.2d 42, 43 (Mo.App. W.D.1992).

After the Director presents a prima facie case, the driver is entitled to rebut it with evidence that his blood alcohol content did not exceed the legal limit. Verdoorn, 119 S.W.3d at 545. The driver may present rebuttal evidence that raises a genuine issue of fact regarding the validity of the blood alcohol test results. Id. at 546. The driver's burden is one of production—not persuasion since the Director retains the burden of proof throughout the proceeding. Id.

The parties do not dispute that the Director established a prima facie case that Mr. Orton's BAC was .10 percent or greater.³ The Breathalyzer used to test Mr. Orton's BAC, the Data Master, was approved by the Department of Health. 19 CSR 25-30.050(1). Additionally, the arresting officer testified that he possessed a Type III operator's permit, observed Mr. Orton for fifteen minutes prior to administering the breath test, and followed the Department of Health's checklist in conducting the test. The Director made a prima facie case. Robison, 837 S.W.2d at 43.

Mr. Orton attempted to rebut the presumption that he was legally intoxicated with the testimony of John Zettl, a forensic toxicologist. Mr. Zettl testified that the breath testing procedure employed in Missouri does not require duplicate tests or testing against a known standard at the time of the test, both of which would determine the accuracy of the test at the time of the test. He also testified that the testing procedure in Missouri does not require that the driver's breath temperature be taken at the time of the test. He testified that the Breathalyzer employed in this case assumes a breath temperature of 34 Celsius but that a study in Alabama concluded that the average breath temperature is closer to 35 Celsius. Mr. Zettl explained that if one's breath temperature is raised one degree Celsius, which is about four or four and a half degrees Fahrenheit, his breath alcohol test result would be about six to six and a half percent higher. Mr. Zettl testified that Missouri's failure to require duplicate testing, testing against a known standard at the time a test is administered, and taking the driver's breath temperature affects the accuracy and precision of the breath test result. Thus, Mr. Zettl opined that a breath test result obtained using the Missouri procedure would not be accurate or reliable to a reasonable degree of scientific certainty.

Mr. Zettl, however, did not testify to a reasonable degree of scientific certainty that Mr. Orton's BAC was below the test result of .110 percent at the time of...