Court of Appeals of Missouri, Southern District, First Division
FROM THE CIRCUIT COURT OF ST. CLAIR COUNTY Honorable Jerry J.
AND REMANDED WITH INSTRUCTIONS
BURRELL, J. - OPINION AUTHOR
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. 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.
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.
Principles of Review and Governing Law
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.
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.
"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[, ]"
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).