Testerman v. Director Of Revenue

• Decision Date: 07 November 2000
• Citation: 31 S.W.3d 473
• Parties: (Mo.App. W.D. 2000) . Gale Ann Testerman, Respondent v. Director of Revenue, State of Missouri, Appellant. Case Number: WD58036 Missouri Court of Appeals Western District Handdown Date:
• Court: Missouri Court of Appeals

31 S.W.3d 473 (Mo.App. W.D. 2000)

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.

Gale Ann Testerman, Respondent v. Director of Revenue, State of Missouri, Appellant.

Case Number: WD58036

Missouri Court of Appeals Western District

Handdown Date: 11/07/2000

Appeal From: Circuit Court of Benton County, Hon. Larry M. Burditt

Counsel for Appellant: James A. Chenault, III

Counsel for Respondent: James O. Kjar

Opinion Summary:

The Director of Revenue (Director) appeals from the judgment of the circuit court reinstating the driver's license of the respondent, Gale Ann Testerman, after it had been administratively suspended by the Director for the respondent's driving with a blood alcohol concentration (BAC) of .10% or more, pursuant to section 302.505.1.

In his sole point on appeal, the Director claims that the trial court erred in reinstating the respondent's driver's license because he made a prima facie case for suspension under section 302.505.1, which was not rebutted by the respondent.

REVERSED AND REMANDED.

Division Three holds: Under section 302.505.1, the Director makes a prima facie case for suspending or revoking a driver's license by showing that: "(1) there was probable cause to arrest the driver for DWI, and (2) at the time of the arrest, the driver's BAC was at least .10% or more by weight." Once the Director has made a prima facie case, the burden then shifts to the driver to present evidence to rebut it by a preponderance of the evidence.

The respondent did not dispute that there was probable cause to arrest her for DWI. Instead, she challenged the Director's introduction of her Breathalyzer test (BTR), which was necessary to prove that she was driving with a BAC of .10% or more. The objection was on the basis of improper foundation in that the maintenance check on the DataMaster machine had not been conducted in accordance with applicable Department of Health regulations because although the maintenance officer checked the box provided on the prescribed "DataMaster Maintenance Report" form, indicating that he had checked the simulator temperature and found it to be within the allowed range, he did not indicate the specific simulator temperature, which the respondent argued was required by the express instructional language of the form.

We can find no authority requiring the maintenance officer to indicate on the "DataMaster Maintenance Report" form the specific simulator temperature. The record reflects that the sole basis for the respondent's argument was the checklist instructions of the maintenance report form, which read: "CHECKLIST: Place a check to the left of each item if found to be satisfactory or if operating within established limits. (Write in observed values where determined.) Unchecked items must be corrected before using instrument." (Emphasis added.) By looking solely at the italicized language, we would agree that an argument could be made that he was required to indicate the exact simulator temperature on the form. However, in looking at the form in toto, it becomes readily apparent which steps require a specific value to be written in and which do not. Those that do require an amount have an additional blank line provided on which to write the temperature amount. No such blank is provided on the form, however, for the simulator temperature, indicating that all that is required of the officer with respect to this maintenance step is that the officer determine that the simulator temperature is within the allowed range. Therefore, we find that it would be unreasonable to allow the trial court to infer from the officer's failure to gratuitously include this information that he had failed to perform a "required" maintenance step such that the respondent's BTR was rendered inadmissible. Hence, the Director made a prima facie case for suspension.

To rebut the Director's prima facie case for suspension or revocation under section 302.505, the respondent presented evidence from which her counsel argued that the trial court could reasonably infer that she had a peppermint in her mouth during the required observation period such that her BTR should not have been admitted for a lack of foundation. The Director, however, contends that the evidence was insufficient for the trial court to find that she had anything in her mouth during this critical time.

In order to ensure a valid BTR, a driver submitting to a breathalyzer test must be observed for fifteen minutes prior to taking the test to ensure that he or she does not smoke, vomit, or place anything into her mouth. The record reflects that the Director introduced testimony from the arresting officer that he observed her for the requisite fifteen minutes, and he did not see her smoke, vomit or have any kind of oral intake. Further, the respondent testified that she did have a mint in her mouth at some point in time after the arrest, but she was unable to state exactly when she placed the mint in her mouth, whether she chewed it or sucked on it, how large the mint was, or how long it remained in her mouth. In this regard, the record favorable to the trial court's judgment would indicate that the respondent was stopped at 1:36 a.m., arrested at 1:46 a.m., asked for her consent to submit to a breathalyzer test at 1:58 a.m., and given the breath test at 2:17 a.m.

At best, when viewed in a light most favorable to the respondent, the evidence would support the fact that sometime between 1:46 and 1:58 a.m. the respondent placed a peppermint in her mouth and that it was still there at 1:58 a.m., when Officer Bonner asked her whether she would consent to taking a breathalyzer test. However, without engaging in pure speculation, there is no way to determine whether the mint was still in her mouth during the observation period, 2:02 -- 2:17 a.m. Thus, in concluding that the Director's prima facie case for suspension under section 302.505.1 had been rebutted by the fact that the respondent had a peppermint in her mouth during the observation period, the trial court clearly had to resort to an inference that was unreasonable in that it relied on speculation, which it could not do. Hence, the trial court's judgment reinstating the respondent's driver's license based on the respondent's rebutting of the Director's prima facie case was in error.

Opinion Author: Edwin H. Smith, Presiding Judge

Opinion Vote: REVERSED AND REMANDED. Ulrich and Ellis, JJ., concur.

Opinion:

The Director of Revenue (Director) appeals from the judgment of the circuit court reinstating the driver's license of the respondent, Gale Ann Testerman, after it had been administratively suspended by the Director for the respondent's driving with a blood alcohol concentration (BAC) of .10% or more, pursuant to section 302.505.1.¹

In his sole point on appeal, the Director claims that the trial court erred in reinstating the respondent's driver's license because he made a prima facie case for suspension under section 302.505.1, which was not rebutted by the respondent.

We reverse and remand.

Facts

On February 21, 1999, Officer Rodney Bonner of the Warsaw Police Department observed the respondent drive her truck across the center line of an outer road in Warsaw, Missouri. In response, he activated his patrol lights and stopped the respondent's vehicle. After approaching the vehicle to issue a citation, the officer smelled the odor of intoxicants coming from the vehicle. Under questioning by Officer Bonner, the respondent admitted that she had been drinking. As a result, Officer Bonner administered three field sobriety tests which, in his opinion, the respondent failed. Officer Bonner placed the respondent under arrest for DWI, put her in his patrol car, and transported her to the Benton County Sheriff's Department. At the Sheriff's Department, the respondent was given a breathalyzer test by Officer James Cihy of the Warsaw Police Department. The test indicated that the respondent had a BAC of .204.

After her arrest, the Director notified the respondent that her driver's license was suspended pursuant to section 302.505. Pursuant to section 302.530, the respondent requested administrative review of her suspension, which was upheld. Subsequently, on May 28, 1999, pursuant to section 302.535.1, the respondent filed a petition for trial de novo in the Circuit Court of Benton County. The Honorable Larry M. Burditt heard the petition on August 5, 1999. At the close of all of the evidence, the trial court took the respondent's case under advisement.

On November 12, 1999, the trial court entered its judgment reinstating the respondent's license, finding that the respondent "did place [an] object in her mouth during the period fifteen minutes immediately prior to taking the test."

This appeal follows.

Standard of Review

Our review of the trial court's judgment reinstating the license of the respondent, after it had been suspended under section 302.505.1 for driving with a BAC of .10% or more, is the same as in any other judge-tried case and is governed by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). Endsley v. Dir. of Revenue, 6 S.W.3d 153, 157 (Mo. App. 1999). "As such, we must affirm the judgment 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.

I.

In his sole point on appeal, the Director claims that the trial court erred in reinstating the respondent's driver's license because he made a prima facie case for suspension under section 302.505.1, which was not rebutted by the respondent.² We agree.

Section 302.505.1 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...