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Gallagher v. Director of Revenue

Court of Appeals of Missouri, Eastern District, First Division

February 23, 2016

PHILIP LORENZO GALLAGHER, Respondent,
v.
DIRECTOR OF REVENUE, Appellant

          Appeal from the Circuit Court of St. Charles County. Hon. Matthew E.P. Thornhill.

         FOR APPELLANT: Rachel M. Jones, Missouri Department of Revenue, Jefferson City, MO.

         FOR RESPONDENT: Carl M. Ward, St. Louis, MO.

         Mary K. Hoff, J. and Roy L. Richter, J., concur.

          OPINION

Page 25

          ROBERT G. DOWD, JR., Presiding Judge.

          The Director of Revenue appeals from the judgment of the trial court reinstating the driving privileges of Philip Gallagher, which were suspended after his arrest for driving while intoxicated. The Director argues that the trial court erred in excluding from evidence the breath sample results showing Gallagher's blood alcohol content (" BAC" ) was over the legal limit. We agree, and therefore reverse and remand.[1]

Page 26

          Gallagher was arrested for driving while intoxicated after a traffic stop, during which he performed poorly on field sobriety tests, displayed some indicia of intoxication and told the arresting officer he had " drank a lot." He agreed to provide a breath sample on an Alco Sensor IV breath analyzer, the results of which showed his BAC was .152 percent, well over the legal limit of .08 percent. His license was suspended, and Gallagher filed a petition for a trial de novo.

         At trial, Gallagher objected to the admission of the breath sample results on the ground that the compressed ethanol-gas mixture used to maintain the breath analyzer was not provided from an approved supplier under Department of Health and Senior Services regulations. On the maintenance report, the inspecting officer had listed " Intoximeters" in the box labeled " Standard Supplier" of the gas mixture. Intoximeters, Inc. is an approved supplier under the regulation. See 19 CSR 25-30.051(6). The certificate of analysis accompanying that report indicated that the gas mixture was manufactured by Airgas Mid America and listed Intoximeters as Airgas's customer. The trial court found that Airgas was not an approved supplier under the regulation. The trial court reasoned that because Intoximeters did not manufacture the gas mixture, and instead merely served as a " middleman" between the manufacturer and law enforcement, Intoximeters was not the supplier. On that basis, it excluded the breath sample results and--there being no admissible evidence of Gallagher's BAC--ordered the Director to remove the suspension and reinstate his driving privileges. This appeal follows.

         The Director has the burden to establish by a preponderance of the evidence a prima facie case for suspension of a driver's license by introducing evidence that there was probable cause for arresting the driver for an alcohol-related offense and that the driver's BAC exceeded the legal limit of .08 percent. McGough v. Director of Revenue, 462 S.W.3d 459, 462 (Mo. App. E.D. 2015). To establish that a driver's BAC was over the legal limit, the Director may introduce evidence of the results of a breath analyzer test. Id. To lay a foundation for admission of those results, the Director must establish that the test was performed using the approved techniques and methods of the Department of Health and Senior Services, by an operator holding a valid permit and on equipment and devices approved by the Department. Id.

         The Department has promulgated regulations regarding the maintenance of breath analyzers that must be followed in order for the results taken from that machine to be admissible at trial. In relevant part, they provide that the " [c]ompressed ethanol-gas standard mixtures used to verify and calibrate evidential breath analyzers shall be mixtures provided from approved suppliers." 19 CSR 25-30.051(5). There are four approved suppliers listed in the regulation, including Intoximeters; Airgas is not an approved supplier. 19 CSR 25-30.051(6). The Director argues that this regulation does not require that the gas mixture be manufactured by one of the approved suppliers listed therein, only that the gas mixture be provided to law enforcement from one of those approved suppliers. Although Airgas manufactured the gas mixture in this case, Intoximeters was clearly listed on the maintenance report

Page 27

as the supplier. Therefore, the Director contends, the trial court incorrectly concluded that because Intoximeters was not the ...


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