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Messner v. Director of Revenue

Court of Appeals of Missouri, Western District, Third Division

July 21, 2015

GRANT LOUIS MESSNER, Respondent,
v.
DIRECTOR OF REVENUE, Appellant

Page 477

APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY. THE HONORABLE ROBERT L. TROUT, JUDGE.

James R. Hall, Oak Grove, MO for respondent.

Rachel M. Jones, Jefferson City, MO for appellant.

BEFORE DIVISION THREE; KAREN KING MITCHELL, PRESIDING JUDGE, LISA WHITE HARDWICK AND ANTHONY REX GABBERT, JUDGES.

OPINION

Page 478

LISA WHITE HARDWICK, JUDGE

The Director of Revenue appeals a circuit court judgment reinstating Grant Messner's driving privileges following an administrative suspension for driving while intoxicated. The Director contends the judgment is unsupported by substantial evidence and erroneously applies the law. For reasons explained herein, we find no error and affirm the judgment.

Factual and Procedural History

On June 20, 2013, at approximately 1:30 a.m., Officer Daniel Lawrence observed Grant Messner's vehicle weaving and crossing the center line of the road. Officer Lawrence stopped the vehicle and immediately smelled the odor of alcohol emanating from Messner. After Messner failed several field sobriety tests, Officer Lawrence arrested him for driving while intoxicated (DWI).

Messner was taken to the Lake Lotawana police station. After observing Messner for a minimum of 15 minutes to ensure that no smoking or oral intake of any material occurred, Officer Lawrence attempted to administer a breath test on the Intoxilyzer 5000. The device printed an evidence ticket at 2:17 a.m. which read: " INVALID TEST -- SUBJECT DID NOT PROVIDE VALID SAMPLE." A few minutes later, Officer Lawrence administered another test. The device printed an evidence ticket at 2:21 a.m. which reported a result of .166% as Messner's blood alcohol content (BAC).

After an administrative hearing, the Director suspended Messner's driving privileges pursuant to Section 302.505, RSMo.[1] Messner filed a petition for trial de novo in the circuit court as provided by Section 302.535.

During the trial de novo, the Director presented certified records from the Department of Revenue's file, including Officer Lawrence's narrative incident report, the Alcohol Influence Report, and the evidence ticket from the second breath test showing Messner's BAC at .166%. The records did not include the " invalid test" printout generated from the first breath test attempt and there was no mention of the first attempt in Officer Lawrence's reports. Likewise, Officer Lawrence did not mention the first attempt during his direct testimony.

On cross-examination, Officer Lawrence acknowledged that the additional breath test had been administered but was left out of his reports and direct testimony. Officer Lawrence said that on his first attempt to obtain a breath sample, Messner was " either refusing or arguing" and that the machine " timed out" as Messner had not blown into the machine. Officer Lawrence testified that he inadvertently omitted this information from his reports.

Messner offered as evidence the printout from the first attempt to obtain a breath sample, which showed the error message " INVALID TEST -- SUBJECT DID NOT PROVIDE VALID SAMPLE." He also offered as evidence the operator's manual for the Intoxilyzer 5000. Contrary to Officer Lawrence's assertion that the device timed out, Messner testified that he did, in fact, blow into the machine the first time the test ...


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