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Carter v. Director of Revenue

Court of Appeals of Missouri, Western District

February 17, 2015

SHANE ADAM CARTER, Respondent,
v.
DIRECTOR OF REVENUE, STATE OF MISSOURI, Appellant

Appeal from the Circuit Court of Clay County, Missouri. The Honorable Louis Angles, Judge.

Jeffrey Scott Eastman, Gladstone, MO, for respondent.

Daniel N. McPherson, Jefferson City, MO, for appellant.

Before Special Division: Cynthia L. Martin, Presiding Judge, Gary D. Witt, Judge and Anthony Rex Gabbert, Judge. All concur.

OPINION

Page 445

Cynthia L. Martin, J.

The Director of Revenue (" Director" ) appeals a trial court judgment setting aside the revocation of Shane Adam Carter's (" Carter" ) driving privileges. Director argues that the trial court erred in excluding the results of Carter's breath test for the stated reason that the breath testing device was not properly calibrated pursuant to a Department of Health and Senior Services (" DHSS" ) regulation in effect at the time of Carter's arrest. Because a separate legal rationale established by the record and not challenged by the Director independently supports the trial court's determination that it could not consider the results of Carter's breath test, we affirm.

Factual and Procedural History[1]

On June 16, 2013, Carter was driving north on Highway 169 when he encountered a DWI checkpoint just north of N.W. Vivian Road in Kansas City, Missouri. An officer approached Carter, smelled alcohol coming from Carter and his car, and noticed that Carter's eyes were watery, bloodshot, and glassy. Carter admitted to consuming alcohol that day. The officer administered field sobriety tests to Carter and then placed Carter under arrest. Carter was taken to a mobile station at the DWI checkpoint and agreed to take a breath test. The officer conducted a breath test using an Alco-Sensor IV breath testing device. The test showed a blood alcohol content (" BAC" ) of .170 percent.

Carter was notified that his license and privilege to operate a motor vehicle were subject to administrative sanction pursuant to section 302.520 since his BAC exceeded the permissible statutory limit of .08 percent. Carter timely challenged the administrative sanction through the appeal

Page 446

process set forth in section 302.530.[2] A hearing examiner affirmed the decision to revoke Carter's driving privileges, effective November 8, 2013. Carter requested a trial de novo as provided by section 302.535.

A trial was conducted on March 31, 2014. The trial court took judicial notice of 19 C.S.R. 25-30.051, the DHSS regulation governing the use of breath testing devices. With the arresting officer on the stand, the Director offered into evidence a June 4, 2013, maintenance report for the Alco-Sensor IV device used to test Carter to establish that the device had been properly verified and calibrated pursuant to 19 C.S.R. 25-30.051. Carter objected and argued that the maintenance report and Carter's breath test results should be excluded because 19 C.S.R. 25-30.051(2) requires breath test instruments to be verified and calibrated using standard simulator solutions at three different vapor concentration levels, whereas the instrument used to take his breath test had only been verified and calibrated at one vapor concentration level. The Director responded that read as a whole, the DHHS regulations regarding breath test devices only require the use of one solution during calibration and verification of the breath testing device. The trial court overruled Carter's objection and admitted the maintenance report into evidence.

The Director then asked the officer to describe the result of Carter's breath test. Carter again objected on the additional ground that there was no evidence that the device used to take his breath test had been certified pursuant to 19 C.S.R. 25-30.051(4). In response, the Director offered a certification report that indicated that the breath testing device used to take Carter's breath test had been calibrated on February 26, 2014, using testing standards traceable to the National Institute of Standards and Technology (" NIST" ) in accordance with 19 C.S.R. 25-30.051(4). The trial court admitted the certification report into evidence. The officer was then ...


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