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Hickenbotham v. Director of Revenue

Court of Appeals of Missouri, Eastern District, Second Division

April 4, 2017

JUSTIN SCOTT HICKENBOTHAM, Petitioner/Respondent,
v.
DIRECTOR OF REVENUE, Respondent/Appellant.

         Appeal from the Circuit Court of Madison County Honorable Robin Edward Fulton.

          SHERRI B. SULLIVAN, P.J.

         Introduction

         The Director of Revenue (the Director) appeals from the judgment of the trial court reinstating the driving privileges of Justin Scott Hickenbotham[1] (Driver). We reverse and remand.

         Factual and Procedural Background

         On September 18, 2015, Driver was pulled over by Missouri State Highway Patrol Trooper Eric Ganime (Trooper Ganime) for speeding and was subsequently arrested for driving while intoxicated. Trooper Ganime transported Driver to the Madison County Jail where he read Driver Missouri's Implied Consent law. Driver consented to take a breath test. Trooper Ganime used an Intox DMT breathalyzer, serial number 500100, to perform the breath test, which measured Driver's blood alcohol content (BAC) as .237%. Trooper Ganime issued Driver a Department of Revenue notice suspending his driving privileges. Driver requested an evidentiary hearing, at which the Director prevailed. Driver then filed a petition for a trial de novo in the circuit court to review the suspension.

         The trial de novo was conducted on March 17, 2016. At the hearing, the Director offered as evidence Exhibit A consisting of the notice of suspension; Trooper Ganime's Alcohol Influence Report and narrative statement; two Uniform Citations; a Blood Alcohol Test Report from the Intox DMT; the Intox DMT Maintenance Report; a Guth Lab Certification of Analysis for the Simulator Solution; a copy of Trooper Ganime's Type II Permit for the Intox DMT; and Driver's driving record. The Intox DMT Maintenance Report indicated the breathalyzer had been verified and calibrated on September 12, 2015, using a breath alcohol simulator with a standard solution. The Maintenance Report stated it was calibrated with a Guth simulator, number MP2214, which expired on June 1, 2016.

         The Director also offered into evidence Exhibit B, which included a Guth Lab calibration report for the breath alcohol simulator number MP2214 dated July 8, 2014, and a Department of Health and Senior Services (DHSS) calibration report for the simulator dated June 1, 2015, and expiring on June 1, 2016. Both the 2014 and 2015 reports show the simulator was certified against a National Institute of Standards and Technology (NIST) traceable thermometer or thermocouple as required by 19 CSR 25-30.051(4). The exhibits were admitted into evidence by agreement of the parties, subject to Driver's objection to the admission of the BAC result contending DHSS regulations required the Director to submit evidence the simulator was properly certified in 2013 prior to admission of the breath test result.

         At the hearing, Driver argued DHSS regulation 19 CSR 25-30.051(4) requires the Director to prove the breath alcohol simulator was calibrated in 2013 and annually thereafter. Driver asserted the breathalyzer result from 2015 was inadmissible unless the Director presented evidence the simulator used to conduct the periodic maintenance checks had been calibrated in 2013, 2014, and 2015. The Director acknowledged the regulation requires testing to begin in 2013 but asserted the simulator at issue was not in service in 2013 and, therefore, it could not be have been tested in 2013. The Director asserted it had submitted a calibration certificate covering the time period relevant to the case and that evidence of calibration occurring two years prior was irrelevant. The case was submitted on the record.

         On March 18, 2016, the trial court entered its judgment finding the Director had failed to prove the breath alcohol simulator was not placed into service until 2014 and, thus, the BAC result was inadmissible because the Director failed to submit the required certification for calendar year 2013. The trial court ordered the Director to remove Driver's administrative suspension and to reinstate his driving privileges. Director appeals.

         Point Relied On

         On appeal, the Director argues the trial court erred in reinstating Driver's driving privileges because the court erroneously declared and applied the law, in that the Director is only required to prove the breath alcohol simulator used in the maintenance check of the evidential breath analyzer had been calibrated according to the requirements of 19 CSR 20-30.051(4) at the time of the maintenance check, and the regulation does not require the Director to show proof of simulator certifications from previous years that expired prior to the date of maintenance.

         Standard of Review

         On appeal from the trial court's judgment, this Court will affirm the decision of the trial court if it is supported by substantial evidence, is not against the weight of the evidence, and does not erroneously declare or apply the law. Irwin v. Dir. of Revenue, 365 S.W.3d 266, 268 (Mo. App. E.D. 2012). In this case, the trial court's exclusion of the evidence was based on interpretation of regulation 19 CSR 20-30.051(4); thus, the issue on appeal is a question of law which we review de novo. Gallagher v. Dir. of Revenue, 487 S.W.3d 24, 27 (Mo. App. E.D. 2016). "Administrative regulations are interpreted under the same principles of construction as ...


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