Sledd v. Dir. of Revenue
| Decision Date | 29 November 2016 |
| Docket Number | No. SD 34272,SD 34272 |
| Citation | 503 S.W.3d 347 |
| Parties | Michael Ray SLEDD, Petitioner–Respondent, v. DIRECTOR OF REVENUE, Respondent–Appellant. |
| Court | Missouri Court of Appeals |
RACHEL M. JONES, Jefferson City, MO, for Appellant.
MATT LOWE, Clinton, MO, for Respondent.
The Director of Revenue ("Director") appeals the judgment setting aside her suspension of Michael Ray Sledd's ("Driver") driving privileges after Driver was arrested in August 2014 for driving while intoxicated with a blood-alcohol concentration ("BAC") in excess of .08%. See sections 302.505 and 302.535.1 The trial court set aside the suspension on the ground that Director failed to demonstrate that the test of Driver's breath was performed on a breath analyzer
machine that met the required standards.
Director claims the ruling was erroneous because the simulator solution used to calibrate the breath analyzer
("the Simulator") had been certified as required "at the time of maintenance, and [19 CSR 25–30.051(4) ] did not require [Director] to show that an additional certification occurred after the date the maintenance check was performed." Finding merit in this claim, we reverse the judgment of the circuit court and remand the matter for further proceedings consistent with this opinion.
"In appeals from a court-tried civil case, the trial court's judgment will be affirmed 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." White v. Dir. of Revenue , 321 S.W.3d 298, 307–08 (Mo. banc 2010). "The evidence and all reasonable inferences therefrom are viewed in the light most favorable to the judgment and all contrary evidence and inferences are disregarded." O'Rourke v. Dir. of Revenue , 409 S.W.3d 443, 446 (Mo. App. E.D. 2013). In contrast to that deference in fact-finding, we review the trial court's interpretation of statutes and regulations de novo . Stiers v. Dir. of Revenue , 477 S.W.3d 611, 614 (Mo. banc 2016).
To suspend a license, Director must establish "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." McGough v. Dir. of Revenue , 462 S.W.3d 459, 462 (Mo. App. E.D. 2015) ; see also section 302.505.1. Proof that the BAC exceeded the legal limit may be in the form of the results of a breathalyzer test if the proper foundation for the result is established. See Irwin v. Dir. of Revenue , 365 S.W.3d 266, 268–69 (Mo. App. E.D. 2012). "Foundational requirements for the admission of breath tests are only an issue in the event that [as occurred here] a timely objection is made." Courtney v. Dir. of Revenue , 477 S.W.3d 659, 667 (Mo. App. W.D. 2015).
To establish a prima facie foundation for admission of breathalyzer test results, Director must demonstrate the test was performed: (1) by following the approved techniques and methods of DHSS [Department of Health and Senior Services]; (2) by an operator holding a valid permit; (3) on equipment and devices approved by DHSS.
The "rule defin[ing] the standard simulator solutions ... to be used in verifying and calibrating breath analyzers
, as well as the annual checks required on simulators used in conjunction with the standard simulator solution [,]" is:
Any breath alcohol simulator used in the verification or calibration of evidential breath analyzers
with the standard simulator solutions referred to in ... this rule shall be certified against a National Institute of Standards and Technology (NIST) traceable reference thermometer or thermocouple between January 1, 2013, and December 31, 2013, and annually thereafter.
At the outset of the September 28, 2015 bench trial, Director's counsel requested findings of fact as to witness credibility and whether sufficient evidence supported that "[Driver] was driving with a blood alcohol content of eight hundredths of one percent or more by weight." Counsel for Director also provided the trial court with a proposed form to use in making its findings.
Highway Patrol Trooper William M. Bush provided the following testimony. On August 13, 2014 he stopped Driver's vehicle for speeding, and he noticed that Driver's speech was "slightly slurred[,]" "his eyes were bloodshot and watery looking[,]" and Driver had "a moderate smell of alcohol about his person." The trooper arrested Driver for driving while intoxicated after his performance on a gaze nystagmus test
indicated that he "was intoxicated." After Driver was transported to jail, Driver took a breath test on a particular "DataMaster" breath analyzer machine identified by a serial number ("the breath machine").2
When counsel for Director asked the trooper to testify about Driver's "breath test result[,]" counsel for Driver objected that Director had not "laid a sufficient foundation under 19 CSR 25–30.051 as it relates to the testing of the thermostat3 on the simulator" ("the foundation objection"). The trooper was permitted to testify about the result of the test, subject to an eventual ruling by the trial court on the foundation objection. Trooper Bush's written report was received into evidence, but its reflection of an "alleged blood alcohol readout from the [breath machine]" was also subject to a ruling on the foundation objection.
Maintenance reports on the breath machine resulting from inspections performed on August 12, 2014—the day before Driver's arrest—and September 13, 2014 ("the 2014 maintenance inspections") were received into evidence with "[n]o objection." The 2014 maintenance inspections reflected the same serial number and "EXP. DATE" of December 20, 2014 for the Simulator. Additional records received into evidence indicated that the Simulator was itself tested using a NIST traceable thermometer during a December 20, 2013 simulator certification. That particular certification reflected an "[e]xpir[ation]" date for the Simulator of December 20, 2014.
Highway Patrol Trooper Joshua White provided the following testimony. He began doing maintenance checks on breath analyzers
in St. Clair County in December 2014 after another trooper had resigned from the position. When Trooper White moved into the St. Clair position, he brought his own simulator with him, and he sent the Simulator to the Patrol's facility in Jefferson City. Trooper White did not know when the Simulator was last used in a maintenance check or whether it had been certified after the last time it was used in a maintenance check.
After Trooper White's testimony, counsel for Director reoffered Driver's breath-test result. Driver's counsel made "the same objection[,]" adding that Driver's counsel pointed out that while the 2014 maintenance inspections evidenced that the "thermostat" for the Simulator had been checked in 2013, "there is no evidence that it was ever checked in 2014." Director's counsel argued that the December 2013 certification was sufficient to cover the Simulator "up to December 20[,]" 2014.
The trial court took the objection under advisement and permitted the parties an opportunity to brief whether the December 2013 certification was good "from January 1, 2014, up and until ... the date of [Driver's] arrest [.]" The form judgment subsequently entered allowed the trial court to select particular preprinted findings and, in some instances, to supplement those findings with written entries on blank lines. Room for such additional findings was available under the categories of "Credibility[,]" "Probable Cause[,]" and "BAC[.]" No findings as to credibility or probable cause were either checked or written. Under "BAC," the trial court checked the pre-printed finding that "[t]here was an insufficient foundation for admission of the test results" and provided additional findings via handwritten text.4
Director maintains that the trial because "the 2013 simulator certification was in effect and had not expired at the time of the maintenance check" on the breath machine. Director argues that "the only relevant simulator certification for purposes of admissibility is the certification in effect at the time of the maintenance check" and that to construe 19 C.S.R. 25–30.051(4) otherwise would be "absurd" because it would mean that, without regard to when a trial was held, a simulator would need to be certified within each and every calendar year between the maintenance check preceding a driver's breath test and the date of trial. We agree.
"The primary rule of construction is to ascertain the agency's intent from the language used and give effect to that intent, while considering the words used in their plain and ordinary meaning." Rundell v. Dir. of Revenue , 487 S.W.3d 496, 500 (Mo. App. E.D. 2016). Title 19 C.S.R. 25–30.051 does not define the term "annually," and no definition of the term is included in other administrative regulations relating to the determination of blood alcohol content. See 19 C.S.R. 25–30.011. "In the absence of a definition in the regulation, the words will be given their plain and ordinary meaning as derived from a dictionary." Rundell , 487 S.W.3d at 500.
Director compares the instant case to Sellenriek v. Dir. of Revenue , 826 S.W.2d 338, 340–41 (Mo. banc 1992) ( a former regulation set out at 19 C.S.R. 20–30.031), in which our high court...
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