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Hiester v. Dir. of Revenue

Court of Appeals of Missouri, Eastern District, First Division

February 23, 2016

SAMUEL HIESTER, Appellant,
v.
DIRECTOR OF REVENUE, Respondent

          Appeal from the Circuit Court of St. Louis County. Honorable Ellen H. Ribaudo.

         FOR APPELLANT: John M. Eccher, John H. Moffitt III, Robert S. Adler, Matthew D. Fry, Jeffrey S. Eastman, St. Louis, Missouri.

         FOR RESPONDENT: Chris Koster, Rachel Jones, Missouri Department of Revenue, Jefferson City, Missouri.

          OPINION

Page 679

           ROY L. RICHTER, J.

          Samuel Hiester (" Driver" ) appeals from the trial court's judgment, following a trial de novo, sustaining the Director of Revenue's (" Director's" ) decision to suspend Driver's license for driving with a blood-alcohol concentration (" BAC" ) of 0.08 percent or more, in violation of Section 302.505.1, RSMo (2000). We affirm.[1]

         I. Background

         Driver was arrested upon probable cause to believe he was driving while intoxicated on August 6, 2014. Driver consented to submit to a breath test on an Intox DMT breath analyzer[2], and the results showed his BAC was .164 percent, more than double the legal limit of .08 percent. This led the Director to suspend Driver's license, and Driver filed a petition for a trial de novo.

         At trial, Driver argued the results of the breath test should not be admissible as the compressed ethanol-gas mixture (" the Mixture" ) used to perform maintenance checks on the Intox DMT was not provided from an approved supplier under Department of Health and Senior Services regulations. The maintenance report reflected that Officer Matthew Loveless, the officer who performed the maintenance check, marked boxes to indicate the " Standard Supplier" of the Mixture was Intoximeters, Inc. (" Intoximeters" ). Intoximeters is one of the approved suppliers listed by the Department of Health and Senior Services. See 19 CSR 25.30.051(6). The certificate of

Page 680

analysis of the Mixture, as well as Officer Loveless's testimony, indicated that Intoximeters was the supplier of the mixture and that Airgas USA, LLC (" Airgas" ) was the manufacturer.

         The trial court found Officer Loveless's testimony credible, and in its judgment found that the regulations " do not make a distinction between supplier and manufacturer . . . ." Thus, the trial court found the results of the breath test admissible, and ultimately sustained the Director's suspension of Driver's license. This appeal followed.

         II. Discussion

         In his sole point on appeal, Driver argues the trial court erred in overruling Driver's objection to the admission of his breath test results because the Director failed to establish the statutory compliance necessary to make the test admissible. Driver claims the Mixture used as the breath analyzer accuracy standard in the ...


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