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Sledd v. Director of Revenue

Court of Appeals of Missouri, Southern District, First Division

November 29, 2016

MICHAEL RAY SLEDD, Petitioner-Respondent,
v.
DIRECTOR OF REVENUE, Respondent-Appellant.

         APPEAL FROM THE CIRCUIT COURT OF ST. CLAIR COUNTY Honorable Jerry J. Rellihan

         REVERSED AND REMANDED WITH INSTRUCTIONS

          DON E. BURRELL, J. - OPINION AUTHOR

         The Director of Revenue ("Director") appeals the judgment setting aside her suspension of Michael Ray Sledd's ("Driver") driving privileges after Driver was arrested in August 2014 for driving while intoxicated with a blood-alcohol concentration ("BAC") in excess of .08%. See sections 302.505 and 302.535.[1] The trial court set aside the suspension on the ground that Director failed to demonstrate that the test of Driver's breath was performed on a breath analyzer machine that met the required standards.

         Director claims the ruling was erroneous because the simulator solution used to calibrate the breath analyzer ("the Simulator") had been certified as required "at the time of maintenance, and [19 CSR 25-30.051(4)] did not require [Director] to show that an additional certification occurred after the date the maintenance check was performed." Finding merit in this claim, we reverse the judgment of the circuit court and remand the matter for further proceedings consistent with this opinion.

         Applicable Principles of Review and Governing Law

         "In appeals from a court-tried civil case, the trial court's judgment will be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law." White v. Dir. of Revenue, 321 S.W.3d 298, 307-08 (Mo. banc 2010). "The evidence and all reasonable inferences therefrom are viewed in the light most favorable to the judgment and all contrary evidence and inferences are disregarded." O'Rourke v. Dir. of Revenue, 409 S.W.3d 443, 446 (Mo. App. E.D. 2013). In contrast to that deference in fact-finding, we review the trial court's interpretation of statutes and regulations de novo. Stiers v. Dir. of Revenue, 477 S.W.3d 611, 614 (Mo. banc 2016).

         To suspend a license, Director must establish "that at the time of a driver's arrest: (1) there was probable cause for arresting the driver for violating an alcohol-related offense; and (2) the driver's BAC exceeded the legal limit of 0.08 percent." McGough v. Dir. of Revenue, 462 S.W.3d 459, 462 (Mo. App. E.D. 2015); see also section 302.505.1. Proof that the BAC exceeded the legal limit may be in the form of the results of a breathalyzer test if the proper foundation for the result is established. See Irwin v. Dir. of Revenue, 365 S.W.3d 266, 268-69 (Mo. App. E.D. 2012). "Foundational requirements for the admission of breath tests are only an issue in the event that [as occurred here] a timely objection is made." Courtney v. Dir. of Revenue, 477 S.W.3d 659, 667 (Mo. App. W.D. 2015).

To establish a prima facie foundation for admission of breathalyzer test results, Director must demonstrate the test was performed: (1) by following the approved techniques and methods of DHSS [Department of Health and Senior Services]; (2) by an operator holding a valid permit; (3) on equipment and devices approved by DHSS.

O'Rourke, 409 S.W.3d at 447.

         The "rule defin[ing] the standard simulator solutions . . . to be used in verifying and calibrating breath analyzers, as well as the annual checks required on simulators used in conjunction with the standard simulator solution[, ]" is:

Any breath alcohol simulator used in the verification or calibration of evidential breath analyzers with the standard simulator solutions referred to in . . . this rule shall be certified against a National Institute of Standards and Technology (NIST) traceable reference thermometer or thermocouple between January 1, 2013, and December 31, 2013, and annually thereafter.

19 C.S.R. 25-30.051(4).

         Evidentiary and ...


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