Vanderpool v. Director of Revenue, No. WD 64264 (MO 11/8/2005)
| Decision Date | 08 November 2005 |
| Docket Number | No. WD 64264,WD 64264 |
| Parties | FRANKIE RAY VANDERPOOL, III, Respondent, v. DIRECTOR OF REVENUE, Appellant. |
| Court | Missouri Supreme Court |
Appeal from the Circuit Court of Benton County, Missouri, The Honorable Larry M. Burditt, Judge.
Before: Smith, C.J., and Ulrich and Breckenridge, JJ.
The Director of Revenue (Director) appeals from the judgment of the Circuit Court of Benton County reinstating the driver's license of the respondent, Frankie Ray Vanderpool, which was suspended by the Director, pursuant to § 302.505.1,1 for driving with a blood alcohol concentration (BAC) of .08% or more.
The Director raises one point on appeal. She claims that the trial court erred in excluding the respondent's BAC test result (BTR), for her failure to lay a proper foundation for its admission, resulting in her failing to make a prima facie case for suspending the respondent's driver's license, pursuant to § 302.505.1, for driving with a BAC of .08% or more, because it erroneously declared and applied the law as to the fifteen-minute observation period required by 19 C.S.R. 25-30.060(3) for admission of the respondent's BTR.
We affirm.
On September 7, 2003, Trooper Michael Fennewald of the Missouri State Highway Patrol observed the respondent driving his car northbound on Route U in Mora, Pettis County, Missouri, with no headlights. In response, he activated his emergency lights and stopped the respondent's vehicle.
While questioning the respondent, Trooper Fennewald noticed an odor of alcohol coming from the respondent's vehicle. Trooper Fennewald questioned the respondent as to whether he had been drinking, and the respondent admitted that he had drunk too much to be driving. As a result of the odor of alcohol and respondent's admission, Trooper Fennewald administered a portable breath test, the horizontal gaze nystagmus test, the one-leg-stand test, the walk-and-turn test, and the Romberg test. The respondent failed the portable breath test, the one-leg-stand test, the walk-and-turn test, and the Romberg test.
At approximately 2:00 a.m. Trooper Fennewald placed the respondent under arrest for driving while intoxicated, handcuffed him, and placed him in the backseat, passenger side of his patrol car. Trooper Fennewald then moved the respondent's vehicle, secured it, and returned to the patrol car. The respondent had a passenger at the time of his arrest. Trooper Fennewald gave that passenger, who was not handcuffed or searched, a ride to the Benton County Sheriff's Department. During the drive to the Sheriff's Department, Trooper Fennewald engaged in conversation with both the respondent and his passenger.
Upon arriving at the Benton County Sheriff's Department, at approximately 2:37 a.m., Trooper Fennewald read the respondent the required implied consent warnings and set up the DataMaster he was going to use to test the respondent's breath, which required him to focus his attention on entering data into the machine for a period of at least two minutes. The breath test was administered at approximately 2:39 a.m. For the most part, during this time, Trooper Fennewald was not watching the respondent "face-to-face," but part of the time could see him, using his peripheral vision.
In accordance with § 302.515, the Director notified the respondent that his driver's license had been suspended, pursuant to § 302.505, for "driving a motor vehicle while the alcohol concentration in [his] blood, breath, or urine was eight-hundredths of one percent or more by weight." Pursuant to § 302.530, the respondent requested administrative review of his suspension, which was upheld. Subsequently, on November 19, 2003, pursuant to § 302.535.1, the respondent filed a petition for trial de novo in the Circuit Court of Benton County. The petition was heard on March 22, 2004.
During the Director's evidence, the respondent made a continuing objection to the admission of his BTR on the basis that a proper foundation was not laid by the Director in that Trooper Fennewald did not comply with the fifteen-minute observation period, which is required by the Missouri Department of Health (MDH) guidelines for the administration of a BTR. The trial court reserved ruling on the respondent's objection to the admission of the respondent's BTR.
The trial court entered its judgment, reinstating the respondent's driver's license, on May 26, 2004. In doing so, the trial court sustained the respondent's objection to the admission of the respondent's BTR, finding that Trooper Fennewald had not observed the respondent for fifteen minutes prior to the testing, as required, such that the Director failed to lay a proper foundation for the admission of the BTR and, therefore, failed to make a prima facie case for suspension.
This appeal follows.
Our review of the trial court's judgment reinstating the license of the respondent, after it had been suspended under § 302.505.1 for driving with a BAC of .08% or more, is the same as in any other judge-tried case and is governed by Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Walker v. Dir. of Revenue, 137 S.W.3d 444, 446 (Mo. banc 2004). 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 her sole point on appeal, the Director claims that the trial court erred in excluding the respondent's BAC test result (BTR) for her failure to lay a proper foundation for its admission, resulting in her failing to make a prima facie case for suspending the respondent's driver's license, pursuant to § 302.505.1, for driving with a BAC of .08% or more, because it erroneously declared and applied the law as to the fifteen-minute observation period required by 19 C.S.R. 25-30.060(3) for admission of the respondent's BTR. Specifically, the Director claims that the trial court erroneously declared and applied the law in that, in excluding the respondent's BTR, it erroneously declared that, in order to satisfy the required fifteen-minute observation period, Trooper Fennewald, the arresting officer and DataMaster operator, had to observe the respondent "face-to-face" for the entire fifteen minutes.
Section 302.505.1 authorizes the Director to suspend or revoke a person's driver's license if she determines 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 eight-hundredths of one percent or more by weight[.]" Upon being notified of a suspension or revocation by the Director, the person may, in accordance with § 302.530.1, request a "review of the [Director's] determination at a hearing." The hearing is conducted by an examiner who is employed by the Department of Revenue. § 302.530.3.
The sole issue at the hearing shall be whether by a preponderance of the evidence the person was driving a vehicle pursuant to the circumstances set out in section 302.505. The burden of proof shall be on the state to adduce such evidence. If the department finds the affirmative of this issue, the suspension or revocation order shall be sustained. If the department finds the negative of the issue, the suspension or revocation order shall be rescinded.
Here, upon receiving a notice of suspension from the Director for driving with a BAC of .08% or more, the respondent requested a hearing before an examiner. After a hearing before an examiner, the respondent's suspension was upheld. In accordance with § 302.535.1, the respondent filed a petition for a trial de novo before the circuit court. At such trial, the burden of proof is upon the State. Id. The trial is to be "conducted pursuant to the Missouri rules of civil procedure and not as an appeal of an administrative decision pursuant to chapter 536, RSMo." Id. Accordingly, the issue presented at the § 302.535 trial de novo before the circuit court is the same issue that is presented in the § 302.530 hearing before the examiner such that for the Director to make a prima facie case for suspension or revocation, pursuant to § 302.505.1, she must establish, by a preponderance of the evidence, that: (1) there was probable cause to arrest the driver for driving a motor vehicle while the alcohol concentration in his blood, breath, or urine was eight-hundredths of one percent or more by weight; and (2) at the time of the arrest, the driver's BAC was at least eight-hundredths of one percent or more by weight. Walker, 137 S.W.3d at 446.
In order to satisfy the second element of her prima facie case for suspending the respondent's driver's license, that he was driving with a BAC of .08% or more, the Director sought to introduce his BTR at the trial de novo before the circuit court. The introduction of the driver's BTR is "essential to establish a prima facie case under section 302.505." Orton v. Dir. of Revenue, 170 S.W.3d 516, 520 (Mo. App. 2005). This is so in that, logically, how else would the Director satisfy the second prong of her prima facie case for suspension or revocation? Pursuant to § 577.037.1, a BTR is admissible in a § 302.505 suspension proceeding. However, in order for the Director to establish a proper foundation for the admission of the driver's BTR, to satisfy the second prong of her prima facie case for suspension or revocation, pursuant to § 302.505.1, she has to show: (1) the test was performed by following the techniques and methods approved by the MDH, (2) by licensed medical personnel or by a person possessing a valid permit, and (3) using equipment and devices approved by the MDH. § 577.020.3-4; § 577.026; Stuhr v. Dir. of Revenue, 766 S.W.2d 446, 449 (Mo. banc 1989); Coyle v. Dir. of Revenue, No. WD 63399, 2005 WL 405866, at *2 (Mo. App. Feb. 22, 2005).
The MDH regulations governing the administration of BAC breath tests...
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