Raisher v. Director of Revenue

• Decision Date: 27 January 2009
• Docket Number: No. WD 69090.,WD 69090.
• Citation: 276 S.W.3d 362
• Parties: Scott A. RAISHER, Appellant, v. DIRECTOR OF REVENUE, Respondent.
• Court: Missouri Court of Appeals

276 S.W.3d 362

Scott A. RAISHER, Appellant, v. DIRECTOR OF REVENUE, Respondent.

No. WD 69090.

Missouri Court of Appeals, Western District.

January 27, 2009.

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

Nicole L. Loethen, Jefferson City, MO, for Respondent.

Before: THOMAS H. NEWTON, C.J., JOSEPH M. ELLIS, and JAMES EDWARD WELSH, JJ.

THOMAS H. NEWTON, Chief Judge.

Scott Raisher appeals the trial court judgment affirming the Director of Revenue's suspension of his driver's license. Mr. Raisher claims the trial court erred in its decision because it allowed an officer's testimony to invalidate scientific data. We reverse.

Factual and Procedural Background

Mr. Raisher was driving home when State Trooper Steven Salfrank pulled him over for failing to maintain his lane. Trooper Salfrank smelled alcohol in Mr. Raisher's truck and noticed that his eyes were bloodshot and watery. Trooper Salfrank asked Mr. Raisher if he had been drinking. Mr. Raisher responded, "Not too much." Mr. Raisher performed three sobriety field tests; his performance indicated that he was intoxicated. During the administering of these tests, Trooper Salfrank heard Mr. Raisher speak in a mumbled and slurred voice. He arrested Mr. Raisher for driving while intoxicated. At the police station, Trooper Salfrank read an "Implied Consent Law" form, advising Mr. Raisher that he could submit to a breathalyzer test or refuse and have his license revoked. Mr. Raisher consented to the test.

After Trooper Salfrank, a Type II permit holder, instructed Mr. Raisher, Mr. Raisher blew into the breathalyzer also called the DataMaster. Noticing that Mr. Raisher was not breathing according to his instructions, Trooper Salfrank told Mr. Raisher to move away from the machine. The machine printed out a report indicating Mr. Raisher's blood alcohol content (BAC) was .078%, under the legal limit of intoxication. Trooper Salfrank reinstructed Mr. Raisher on how to breathe and ordered Mr. Raisher to breathe again using this technique. He warned Mr. Raisher that failure to comply would amount to a refusal. Mr. Raisher complied and the machine printed out a report indicating Mr. Raisher's BAC was .094%, over the legal limit of intoxication.

The Director suspended Mr. Raisher's license under section 302.505¹ based on the second BAC reading of .094%. Mr. Raisher filed a petition for review in the circuit court. He argued that his BAC was below the legal limit as evidenced by the first BAC reading of .078%. The Director adduced evidence that the difference between the two test results was attributable to Mr. Raisher's improper breathing. Mr. Raisher adduced evidence that the machine contained software to detect improper breath samples by providing an error code and that no error code displayed on the machine during the first test. After hearing the evidence, the circuit court affirmed the Director's suspension of Mr. Raisher's license; it did not explain its decision. Mr. Raisher appeals.

Standard of Review

We affirm the trial court's judgment affirming the suspension of a driver's license unless the decision is against the weight of the evidence, there is no substantial evidence to support the decision, or the decision erroneously applies or declares the law. Kisker v. Dir. of Revenue, 147 S.W.3d 875, 876 (Mo.App. W.D.2004). We view evidence and reasonable inferences in the light most favorable to the judgment. Id.

Legal Analysis

In his sole point, Mr. Raisher argues that the trial court erroneously applied the law when it affirmed the Director's decision to suspend his license because in doing so, it shifted the Director's burden of persuasion to him. The Director has the burden of proof to establish by a preponderance of evidence that probable cause existed to arrest the driver for driving while intoxicated and that an evidentiary breath test determined the driver's BAC was beyond the legal limit.² Verdoorn v. Dir. of Revenue, 119 S.W.3d 543, 545 (Mo. banc 2003). If the Director establishes both prongs, a prima facie case that the driver was intoxicated is established. Id. The driver is entitled to rebut the prima facie case with evidence that his blood alcohol content did not exceed the legal limit. Id. The driver's burden is one of production and not persuasion, thus the Director maintains the burden of proof— preponderance of evidence—throughout the proceeding. Id. at 546.

It is undisputed that the Director established a prima facie case against Mr. Raisher for driving while intoxicated. There was probable cause to arrest Mr. Raisher, and a breathalyzer test result showed that his BAC level was beyond the legal limit. Moreover, there was a prima facie foundation to admit both BAC test results. See Green v. Dir. of Revenue, 961 S.W.2d 936, 939 (Mo.App. E.D.1998), overruled on other grounds by Verdoorn, 119 S.W.3d at 546. Trooper Salfrank testified that both tests were performed following the rules and regulations using the same DataMaster, which the Missouri Department of Health has approved for BAC testing.

Mr. Raisher contends that he rebutted the Director's prima facie case by introducing the first BAC reading of .078%. Rebuttal evidence must raise a genuine issue of fact "as to whether [the driver's] blood alcohol concentration was above the legal limit at the time" he was arrested. See Kisker, 147 S.W.3d at 877. A driver successfully rebuts the presumption of intoxication by showing a malfunction in the breathalyzer machine because it questions the accuracy of the test result. See Vernon v. Dir. of Revenue, 142 S.W.3d 905, 911 (Mo.App. S.D.2004) (a variance from a reading of .000 in a blank test evidenced a malfunction); Kennedy v. Dir. of Revenue, 73 S.W.3d 85 (Mo.App. S.D. 2002) (a reading that the "system won't zero" evidenced a malfunction). A driver may also successfully rebut a Director's prima facie case by adducing scientific evidence that his or her BAC "was in fact below the legal limit." Kaufman v. Dir. of Revenue, 193 S.W.3d 300, 302-03 (Mo.App. W.D.2006); see also Booth v. Dir. of Revenue, 34 S.W.3d 221 (Mo.App. E.D.2000) (holding driver successfully rebutted presumption by adducing scientific evidence that her BAC was below the legal limit), overruled on other grounds by Verdoorn, 119 S.W.3d at 546; Krieger v. Dir. of Revenue, 266 S.W.3d 316 (Mo.App. W.D. 2008) (same); Kisker, 147 S.W.3d at 877-78 (same).

Mr. Raisher adduced evidence that the breathalyzer reported a legal BAC level of .078%, the first time he blew into the machine. Two conflicting BAC results computed within minutes of each other, on the same machine by the same operator, raises a genuine issue as to whether Mr. Raisher's BAC was above the legal limit. Thus, Mr. Raisher rebutted the prima facie case by providing scientific evidence that his BAC was below the legal limit. The question becomes whether the Director showed by a preponderance of the evidence, in light of Mr. Raisher's rebuttal evidence, that Mr. Raisher's BAC level was above the legal limit.

Preponderance of the evidence is "that degree of evidence that is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows the fact to be proved to be more probable than not." Bain v. Wilson, 69 S.W.3d 117, 120 (Mo.App. W.D.2002) (internal quotation marks and citation omitted), overruled on other grounds by Verdoorn, 119 S.W.3d at 546. The Director contends that it met its burden of proof because Trooper Salfrank testified that the second test result was more accurate than the first test result. Trooper Salfrank reasoned that the breath sample for the second test came from the depth of the lungs, providing a deep alveolar sample,³ unlike the breath sample provided for the first test. The Director argues that "whether the first test result, versus the second, was accurate was a factual issue for the trial court to determine," and the trial court's decision indicates this issue was determined in its favor. In response, Mr. Raisher contends that the trial court misapplied the law when it relied on such testimony to invalidate the first test result because a "proper blowing requirement" is not listed in the state regulations governing the operation of breathalyzers and the machine was designed to detect improper blowing.

We are cognizant that we have deferred to the trial court's ruling where evidence could support two different conclusions. Baldridge v. Dir. of Revenue, 82 S.W.3d 212, 220 (Mo.App. W.D.2002). One of the issues in Baldridge was whether the evidence showed that the driver had refused to submit to a chemical test. Id. at 219. The director evidenced the refusal with an officer's testimony that Baldridge intentionally allowed air to escape through his nose and mouth in an attempt to "fake out" the machine while blowing into the breathalyzer three times. Id. at 220. The trial court disbelieved the officer because there was evidence that the third test generated a printout. Id. This court viewed the evidence to be in conflict as to whether Baldridge refused and thus deferred to the trial court in light of the standard of review. Id. This case, however, does not control our analysis.

Here, the issue is not refusal but whether the Director proved by a preponderance of the evidence that Mr. Raisher's BAC level was above the legal limit. Had Mr. Raisher's denial of the improper breathing been the only evidence in conflict with the trooper's testimony, we would agree with the Director that the issue is one of credibility, as decided in Baldridge. But Mr. Raisher also adduced testimony from the same trooper that the DataMaster is equipped with software to ensure that the breath sample meets its parameters, that the machine would generate an error code if the breath sample failed to meet those minimum parameters, and that the machine did not generate such a message but instead analyzed the breath sample. Thus, the issue is not...