Court of Appeals of Missouri, Eastern District, Second Division
Appeal from the Circuit Court of St. Charles County 1311-CC01180 Honorable Matthew E.P. Thornhill
MARY K HOFF, JUDGE
The Director of Revenue of the State of Missouri (the Director) appeals from the trial court's entry of judgment reinstating the driving privileges of Kristin Nicole Stiers (Driver) after her privileges were revoked by the Director. We affirm.
Factual and Procedural Background
In July 2013, Lake St. Louis Police Officer Gerald Crowley (Officer Crowley) arrested Driver for driving while intoxicated and transported her to the police department. There, Officer Crowley informed Driver of the Missouri Implied Consent Law and of her Miranda rights. Driver then provided a breath sample on an Alco Sensor IV Machine (the breath analyzer), which resulted in a measurement of .172 percent alcohol concentration (BAC). Officer Crowley subsequently issued Driver a notice of suspension/revocation of her driving privileges.
Driver timely filed a request for an administrative hearing to contest the suspension/revocation of her driving privileges. Following the hearing, the Director issued its final order revoking Driver's driving privileges. Driver timely filed her petition for trial de novo with the trial court.
At the trial de novo, the Director offered several exhibits into evidence, including Exhibit A, which contained the result of Driver's breath test, and Exhibit B, a Simulator Calibration Report for the breath analyzer used to measure Driver's BAC. Driver objected to the admission of the breath test result on the ground that the breath analyzer had not been maintained in accordance with the version of 19 CSR 25-30.051(2) that had been in effect at the time of her arrest. Driver argued that the version of 19 CSR 25-30.051(2) in effect at the time of her arrest contained the word "and, " which required calibration checks of the breath analyzer using three standard solutions.
The Director maintained that the emergency version of 19 CSR 25-30.051(2) that became effective February 28, 2014, and was in effect at the time of Driver's trial de novo, applied retroactively and made the result of the breath test admissible. The latter version of 19 CSR 25-30.051(2) amended the version of the regulation in effect at the time of Driver's arrest in 2013 and changed the word "and" to "or" and required calibration checks of the breath analyzer using one standard solution. The Director argued that the version of 19 CSR 25-30.051(2) in effect at the time of Driver's trial de novo was a procedural regulation, not a substantive regulation, and should be applied retroactively because the amended version of the regulation was intended to "clear up any confusion" caused by the use of the word "and." The Director further explained that the reason for the change of the word "and" to "or" was because the version of 19 CSR 25-30.051(2) in effect at the time of Driver's arrest was "being argued by the defense bar" to exclude the results of breath tests and "was changed so that it wouldn't continue to be a problem."
Following argument, the trial court ruled that it would admit the exhibit containing the result of Driver's breath test but it was not automatically admitting the result of the breath test itself and would take the issue with the case. Driver then testified on her own behalf and was cross-examined by the Director. No other witnesses testified. Both parties later submitted post-trial briefs.
The trial court thereafter entered its findings of fact, conclusions of law, and judgment sustaining Driver's objection to the admission of the result of her breath test because the Director "failed to lay a proper foundation for the admission of the breath test under the regulations in effect at the time of the arrest." The trial court concluded that, considering all the evidence before it, the Director had failed to meet its burden of providing sufficient credible evidence that Driver drove with a BAC at or above .08 percent. Given these findings and conclusions, the trial court also found that it did not need to address the Director's evidence regarding the Simulator Calibration Report for the breath analyzer used to measure Driver's BAC and did not need to address whether the Director had proved that Officer Crowley had probable cause to arrest Driver on reasonable suspicion that she was driving under the influence. The trial court reinstated Driver's driving privileges.
This appeal followed.
Standard of Review
In an appeal of a court-tried case regarding a driver license revocation, we will affirm the judgment unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. White v. Director of Revenue, 321 S.W.3d 298, 307-08 (Mo. banc 2010); O'Rourke v. Director of Revenue, 409 S.W.3d 443, 446 (Mo. App. E.D. 2013). "Declarations of law are reviewed de novo." O'Rourke, 409 S.W.3d at 446. We view the evidence and all reasonable ...