Smith v. Dir. Revenue
| Decision Date | 09 October 2018 |
| Docket Number | WD 81414 |
| Citation | 560 S.W.3d 898 |
| Parties | Jessica E. SMITH, Respondent, v. DIRECTOR OF REVENUE, Appellant. |
| Court | Missouri Court of Appeals |
Mark A. Campbell and Jared P. Welch, Platte City, MO, Attorneys for Respondent.
Joshua D. Hawley, Attorney General, and Morgan L. Brewington, Special Assistant Attorney General, Missouri Department of Revenue, Jefferson City, MO, Attorneys for Appellant.
Before Division Four: Karen King Mitchell, Chief Judge, Victor C. Howard, Judge, and George E. Wolf, Special Judge
The Director of Revenue appeals the reinstatement of Jessica Smith’s driving privileges following a trial de novo in the circuit court of Platte County. Director had previously suspended Smith’s driving privileges for operating a motor vehicle with a blood alcohol content (BAC) above the legal limit. Director raises three points on appeal. First, Director argues that the trial court erred in finding the evidence insufficient to establish that Smith’s BAC exceeded .08% when she operated her vehicle. Second, Director argues that the trial court erred in excluding evidence of Smith’s BAC for lack of foundation because Smith failed to make a specific, timely objection to the evidence. And, third, Director argues that the court erred in finding that Director failed to demonstrate compliance with the Department of Health and Senior Services rule requiring a fifteen-minute observation period of the subject before conducting the breath test. Smith concedes error on Director’s second point and asks that we remand the case to the trial court.1 Because the trial court’s judgment is based upon a misapplication of the law, we reverse the judgment and remand for further proceedings.
On July 16, 2017, Deputy Lincoln Pruitt of the Platte County Sheriff’s Department stopped a vehicle driven by Smith because the license plate was expired. When Deputy Pruitt approached Smith, he detected the odor of intoxicants and asked Smith how many drinks she had consumed, to which she replied, "a couple." Deputy Pruitt had Smith perform several field sobriety tests, and her performance was indicative of intoxication. Deputy Pruitt asked Smith to submit to a portable breath test (PBT), and she consented. The PBT revealed the presence of alcohol. Deputy Pruitt then arrested Smith for driving while intoxicated and transported her to the Platte County Detention Center.
At the Detention Center, Deputy Michael Swindler advised Smith of the Implied Consent law and asked her to submit a sample of her breath for testing, and Smith again consented. Deputy Swindler examined Smith’s mouth to ensure there was nothing in it and began a fifteen-minute observation period at 3:30 a.m. Smith subsequently provided a breath sample that indicated a BAC of .119%. Smith’s license was confiscated, and she was issued a Notice of Suspension, along with a citation for driving while intoxicated and failure to register her vehicle.
Smith requested an administrative hearing before the Department of Revenue. Following the hearing, the Department determined that Smith had been arrested upon probable cause to believe she was driving a motor vehicle while her BAC was at or above the legal limit, and it sustained the suspension of her driving privileges. Smith sought a trial de novo before the circuit court of Platte County.
At the trial de novo, Smith and Director stipulated that there was probable cause for Smith’s arrest, leaving the sole issue for determination whether her BAC was at or above .08. Director initially sought an eight-month continuance because Deputy Swindler, the officer who performed the breath test, was unavailable to testify due to a recent military deployment. Smith objected, and the trial court overruled the request. The Director requested findings of facts and conclusions of law.
Director then presented testimony from Deputy Pruitt. Deputy Pruitt testified that he arrested Smith for driving while intoxicated after having initially stopped her for an expired license plate. He further testified that he brought Smith to the Detention Center where he observed Deputy Swindler check her mouth for any foreign material and he was present for the observation period, during which Smith did not eat or drink anything, nor did she vomit, smoke, or place anything into her mouth. Deputy Pruitt indicated that he filled out portions of the Alcohol Influence Report (AIR) related to Smith’s traffic stop and arrest, while Deputy Swindler filled out the portions related to Smith’s breath test.
Following Deputy Pruitt’s testimony, Director offered Exhibit A, which contained the AIR, Form 11 (the report from the breath-testing machine), a copy of Deputy Swindler’s permit to operate the machine, maintenance reports on the machine, Deputy Pruitt’s narrative of Smith’s arrest, copies of Smith’s traffic citations, and peace officer licenses for Deputies Swindler and Pruitt. When offering Exhibit A, Director expressly reserved offering any evidence within the exhibit pertaining to Smith’s BAC. On cross-examination of Deputy Pruitt, however, Smith directly elicited evidence of her BAC result:
Smith also asked Deputy Pruitt several questions about the testing procedure itself, relying on the Breath Alcohol Operator’s Manual, which was admitted into evidence as Smith’s Exhibit 1.
Deputy Pruitt testified that, to begin testing, the operator must push the "Run" button on the machine, after which, the machine prompts the operator to "Scan Operator’s Card" and then "Scan Driver License." The operator is then to verify that all information provided is correct in the machine and then push "Okay." After the operator pushes "Okay," the machine begins an automated test sequence wherein the machine purges all chambers and the internal plumbing of any residual substances "by ambient surrounding air that is pulled through the Breath Tube and pumped through the instrument by an internal pump." If the chamber is clear, three zeroes then appear on the display. A measurement is then "taken after the ambient zeroing period," and if no contamination is detected, the machine will again display three zeroes. After the machine goes through the purge, the ambient check, the zeroing blank check, and the internal standard check, it will then display "did the subject refuse." If the subject refuses, the officer pushes "yes," and the machine prints a refusal ticket. If the subject does not refuse, the officer pushes "no," and the machine then displays "Please blow." If the test is successful, a BAC result is provided.
Form 11, the printout from Smith’s breath testing identified several different times. In the top right-hand corner, a box identified as "Time of Test" indicated 03:43:21. In a box marked "Subject Test Results," the following times were identified:
BLANK TEST 0.000 03:44
INTERNAL STANDARD VERIFIED 03:44
SUBJECT SAMPLE (Vol=3.73L) 0.119 03:47
BLANK TEST 0.000 03:48
Following Deputy Pruitt’s testimony, Director offered testimony from Detective Caleb Jeffries, the officer in charge of maintaining the breath-testing machine. And at the conclusion of Detective Jeffries’s testimony, Director offered into evidence the results of Smith’s BAC testing as included in Exhibit A. Smith objected on the ground that the results lacked foundation for the following reasons:
[T]he Department has failed to prove that the officer has strictly complied with the procedures required by the regulations in performing the breath test; namely, in that the officer did not complete the 15-minute observation period prior to Step 3 on the operational checklist, pushing "Run", entering the pertinent party’s information and allowing the BAC test or the BAC machine to perform the self-check, pull the ambient air in, purge it, et cetera.
Director responded that the fifteen-minute observation period was complied with insofar as "[t]he Department of Health Regulations specifically say it’s the continuous period that ends when a breath sample has been provided." Smith further argued that, according to
The trial court did not rule on the admissibility of the BAC test results, but Director, in an abundance of caution, made an offer of proof that Smith’s BAC had been .119% in case the trial court later deemed the results inadmissible. Shortly thereafter, the trial court issued its judgment, setting aside the suspension of Smith’s driving privileges. The judgment did not directly address the admissibility of Director’s Exhibit A, but it made the following two relevant determinations:
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