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Carey v. Director of Revenue

Court of Appeals of Missouri, Eastern District, Third Division

March 28, 2017

RANDAL CAREY, Respondent,

         Appeal from the Circuit Court of Franklin County Hon. Stanley D. Williams

          ROBERT G. DOWD, JR., Judge

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

         On June 6, 2015, Carey 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 been drinking. He agreed to provide a breath sample for testing on an Alco-Sensor IV breath analyzer, the result of which showed his BAC was .142 percent, well over the legal limit of .08 percent. Carey's license was suspended, and he filed a petition for a trial de novo.

         The Director's evidence at the trial consisted of the testimony of the arresting officer and a packet exhibit containing the breath test results, documents related to maintenance of the breath analyzer and supporting documents for the arrest. According to the maintenance report, the breathalyzer was verified and calibrated on May 8, 2015 using a breath alcohol simulator with a standard simulator solution. The maintenance report contained information about the solution and the simulator, including the simulator's temperature, serial number and an expiration date of February 23, 2016. That expiration date corresponds with one of the two simulator calibration reports included in the Director's exhibit, certifying that the breath alcohol simulator was tested using standards traceable to the National Institute of Standards and Technology ("NIST") with a particular thermometer, identified by serial number. One is dated February 23, 2015 and expires on February 23, 2016 ("the 2015 certification"), and the other is dated January 28, 2014 and expired January 28, 2015 ("the 2014 certification"). The maintenance report indicated that the machine was operating within specifications.

         Carey objected at the outset of trial to admission of the Director's packet exhibit on the ground that the certifications contained hearsay.[1] The court did not rule on this objection and received the exhibit into evidence subject to a later determination about the admissibility of specific portions thereof. When the arresting officer who administered the breath test was asked to testify to the breath test results, Carey again objected. Carey argued that although the Director submitted the 2014 and 2015 certifications showing the simulator had been tested in those years, there was no proof of certification in 2013. Carey contended the applicable regulations for maintaining the breathalyzer required certifications from 2013 and every year thereafter and that must be literally and absolutely followed in order for the Director to satisfy its burden of production and persuasion.[2] The court admitted the exhibit "for purposes of the record" and to avoid having to reopen proceedings should the court later determine it was inadmissible for lacking a 2013 certification. The evidence concluded shortly after this objection, and the court took the matter under advisement.

         In its judgment, the court agreed that the applicable regulations for admission of breath analyzer results must be strictly followed and by failing to present evidence that the breath analyzer was properly calibrated in 2013 the Director failed to comply with those regulations. The court sustained Carey's objection to the portion of the exhibit containing the BAC results on this ground. Thus, while the trial court concluded that there was probable cause to arrest Carey for DWI, it held that the Director failed to establish his BAC and set aside the order suspending Carey's license. The Director appeals.

         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. Gallagher v. Director of Revenue, 487 S.W.3d 24, 26 (Mo. App. E.D. 2016). 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 strictly followed in order for the results taken from that machine to be admissible at trial. "Maintenance checks" are defined by the Department as "the standardized and prescribed procedures used to determine that a breath analyzer is functioning properly and is operating in accordance with the operational procedures established by the Department." 19 CSR 25-30.011(2)(F). A report of the maintenance check must be recorded on a specified form depending on the type of breathalyzer. 19 CSR 25-30.031(7). Maintenance checks must be performed "at intervals not to exceed thirty-five (35) days." 19 CSR 25-30.031(3). If the Director offers a maintenance report showing that a maintenance check has been performed on the machine within 35 days prior to the driver's breath test, then he has demonstrated compliance with this regulation. See Sellenriek v. Director of Revenue, 826 S.W.2d 338, 340 (Mo. banc 1992). As noted above, the maintenance report in this case showed a maintenance check was performed on this machine on May 8, 2015, less than 35 days prior to the breath test on June 6, 2015.

         The Department also has rules regarding the equipment used to perform these maintenance checks, namely standard simulator solutions and gas mixtures that can be used in verifying and calibrating machines and simulators used in conjunction with the standard simulator solution. See 19 CSR 25-30.051. Specifically, the Department requires "annual checks" of the simulators:

Any breath alcohol simulator used in the verification or calibration of evidential breath analyzers with the standards simulator solutions referred to in sections (2) and (3) of this rule shall be certified against a National Institution of Standards and Technology (NIST) traceable reference thermometer or thermo-couple between January 1, 2013, and December 31, 2013, and annually thereafter.

19 CSR 25-30.051(4). This certification requirement became effective December 31, 2012. Here, the Director showed the simulator had been certified in 2014 and 2015.

         Carey contended and the trial court agreed that 19 CSR 25-30.051(4) requires, as a foundational prerequisite to admission of a driver's BAC, proof of certification beginning in 2013 and every year thereafter regardless of the date of the relevant maintenance check or the date the driver's breath was tested. On appeal, the Director contends such an interpretation leads to absurd results and, instead, the only certification that should be required to lay a foundation for the admission of the driver's BAC result is the one in effect-that is, not expired-at the time of the relevant maintenance check-that is, the one done within 35 days before the particular breath test at issue. We agree with the Director.

         Because the trial court's ruling regarding admission of the BAC in this case was based solely on interpretation of a regulation, the issue before us is a question of law that we review de novo. See Gallagher, 24 S.W.3d at 27. Administrative regulations are interpreted under the same principles of construction as statutes. Id. Our goal is to ascertain the agency's intent and give effect thereto by considering the plain meaning of the words used in the regulation. Id. But we will not apply the plain ...

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