Court of Appeals of Missouri, Eastern District, First Division
from the Circuit Court of St. Louis County. Honorable Ellen
APPELLANT: John M. Eccher, John H. Moffitt III, Robert S.
Adler, Matthew D. Fry, Jeffrey S. Eastman, St. Louis,
RESPONDENT: Chris Koster, Rachel Jones, Missouri Department
of Revenue, Jefferson City, Missouri.
ROY L. RICHTER, J.
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.
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, 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
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
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.
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.
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 ...