Scheumbauer v. Dir. of Revenue, ED 96036.

• Decision Date: 25 October 2011
• Docket Number: No. ED 96036.,ED 96036.
• Citation: 350 S.W.3d 868
• Parties: Mark Neil SCHEUMBAUER, Respondent,v.DIRECTOR OF REVENUE, State of Missouri, Appellant.
• Court: Missouri Court of Appeals

350 S.W.3d 868

Mark Neil SCHEUMBAUER, Respondent,
v.
DIRECTOR OF REVENUE, State of Missouri, Appellant.

No. ED 96036.

Missouri Court of Appeals, Eastern District, Division Four.

Oct. 25, 2011.

[350 S.W.3d 869]

Trevor S. Bossert, Jonathan Hale, Jefferson City, MO, for Appellant.John A. Bouhasin, St. Louis, MO, for Respondent.ROBERT M. CLAYTON III, Judge.

The Director of Revenue (“DOR”) appeals from a judgment entered in the Circuit Court of St. Louis County reinstating the driving privileges of Mark Scheumbauer, whose privileges had been suspended following his arrest for driving while intoxicated. We reverse and remand.

I. BACKGROUND

On January 28, 2010, Missouri State Trooper Croft stopped Mark Scheumbauer for speeding. When Trooper Croft approached the vehicle, he observed that Scheumbauer was not wearing his seat belt and that Scheumbauer's speech was slurred and his eyes were watery and bloodshot. Additionally, Trooper Croft detected a strong odor of intoxicants coming from inside the vehicle.

Trooper Croft asked Scheumbauer to accompany him to the patrol car, noticing that Scheumbauer swayed while he walked. Trooper Croft then administered the horizontal gaze nystagmus test, the walk and turn test, the one leg test and the preliminary breath test to Scheumbauer. After the tests, Trooper Croft arrested Scheumbauer and took him to the Arnold Police Department.

At the police station, Trooper Croft read Scheumbauer the Missouri Implied Consent law and Miranda warning.¹ Scheumbauer's breath registered a .100% blood alcohol content (“BAC”). Trooper Croft then issued Scheumbauer a notice of suspension of his driving privileges.

The DOR upheld the suspension of Scheumbauer's license at an evidentiary hearing. Scheumbauer filed a petition for a trial de novo in the Circuit Court of St. Louis County to contest the suspension. At trial, the DOR submitted Trooper Croft's alcohol incident report into evidence. Scheumbauer challenged the validity of the breathalyzer test, contending that Trooper Croft's certification to operate the breathalyzer test was invalid because it was issued by the Missouri Department of Health and Senior Services (“DHSS”) rather than the Missouri Department of Transportation (“DOT”).

[350 S.W.3d 870]

Scheumbauer argued that the authority over the breath alcohol program had been transferred from DHSS to DOT by Executive Order 07–05,² issued by Governor Matt Blunt in January 2007, and DHSS did not have the authority to certify Trooper Croft at the time of Scheumbauer's arrest.

On November 8, 2010, the trial court entered judgment for Scheumbauer, holding that after Executive Order 07–05 became effective, the DHSS no longer had the regulatory authority regarding the breath alcohol testing program. As a result, the trial court excluded the result of Scheumbauer's breath test. Although the trial court found there was probable cause to arrest Scheumbauer, it held that the DOR failed to establish that Scheumbauer had a BAC in excess of the legal limit, and ordered the reinstatement of his driving privileges. The DOR now appeals.

II. DISCUSSION A. Standard of Review

Our review of the trial court's judgment reinstating driving privileges following an administrative suspension or revocation is, as in all court-tried cases, governed by Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Bender v. Dir. of Revenue, 320 S.W.3d 167, 169 (Mo.App. E.D.2010). Thus, we will affirm the trial court's decision to reinstate driving privileges if it is supported...