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Marquart v. Director of Revenue

Court of Appeals of Missouri, Eastern District, Third Division

April 24, 2018

EVERET J. MARQUART, Appellant,
v.
DIRECTOR OF REVENUE, Respondent.

          Appeal from the Circuit Court of Franklin County 15AB-AC00875 Honorable David L. Hoven

          GARY M. GAERTNER, JR., PRESIDING JUDGE

         Introduction

         Everet J. Marquart (Appellant) appeals the trial court's judgment upholding the Director of Revenue's (Director) suspension of Appellant's driving privileges after Appellant was arrested upon probable cause to believe he was driving while intoxicated (DWI). Appellant argues the Director's evidence of Appellant's blood alcohol content was inadmissible because the Director failed to establish that the Franklin County Sheriffs Department maintained and administered the breath analyzer in accordance with state regulations. We affirm.

         Introduction

         On February 21, 2015, Franklin County Sheriffs Deputy Adam Albert (Deputy Albert) arrested Appellant for DWI. Prior to Appellant's arrest, Deputy Albert had observed Appellant driving a car with a headlight that appeared inoperative. Deputy Albert initiated a traffic stop, and Appellant pulled onto the gravel parking lot of a radio station, moved into a grassy area next to the parking lot, and then backed up onto the gravel. Deputy Albert approached Appellant, who had opened his car door. Deputy Albert requested Appellant's driver license and proof of insurance, and he observed Appellant fumble with his wallet looking for his driver license. Deputy Albert noted Appellant's eyes were bloodshot and watery, his speech was lethargic, he mumbled at times, and his movements were slow and uncertain. Deputy Albert asked Appellant whether he had been drinking, and Appellant admitted he drank "a couple beers." Deputy Albert asked Appellant to exit the vehicle and observed that Appellant's movements were slow and uncertain. Deputy Albert again asked how much Appellant had to drink, and Appellant answered he had had four beers. Deputy Albert asked whether Appellant would submit to a preliminary breath test, and Appellant refused.

         Deputy Albert then placed Appellant under arrest for DWI based on his observations. Deputy Albert escorted Appellant to the front seat of his patrol car. Deputy Albert called another deputy and asked him to bring a breath analyzer instrument to his location. Detective Albert testified he did so instead of going to the police station so that he could obtain a breath test closer in time to the arrest. While Deputy Albert was waiting, he conducted a 15-minute observation period of Appellant's mouth. The other deputy arrived with an Alco-Sensor IV with printer unit (AS-IV-P) and put the unit in the back of Deputy Albert's patrol car. Deputy Albert administered a test of Appellant's breath using the AS-IV-P and it showed Appellant's blood alcohol content (BAC) was 0.119 percent.

         The Director notified Appellant the department was suspending Appellant's driver's license, and Appellant requested administrative review. Following a hearing, the hearing officer sustained the suspension of Appellant's driving privileges. Appellant requested a trial de novo in the circuit court. At trial, Appellant objected to the admission of the results of the breath test as lacking foundation, arguing the Director failed to show that Detective Albert used the AS-IV-P in accordance with state regulations. The trial court entered judgment sustaining the revocation of Appellant's driving privileges, finding that Deputy Albert had probable cause to arrest Appellant for DWI and that Appellant's BAC exceeded the legal limit of 0.08 percent. This appeal follows.

         Discussion

         The Director had to show by a preponderance of the evidence "that at the time of [Appellant's] arrest: (1) there was probable cause for arresting [Appellant] for violating an alcohol-related offense; and (2) [Appellant's] BAC exceeded the legal limit of 0.08 percent." Bartholomew v. Dir. of Revenue, 462 S.W.3d 465, 469 (Mo. App. E.D. 2015). Appellant does not contest the trial court's finding that there was probable cause for his arrest. Rather, he argues that the Director failed to establish his BAC exceeded the legal limit because the result of the breath test was inadmissible due to lack of foundation. In Point I, Appellant argues that the Director failed to show compliance with 19 CSR 25-30.050 (2014) because Detective Albert impermissibly used the AS-IV-P in a mobile fashion. In Point II, Appellant further argues that Detective Albert also failed to calibrate the AS-IV-P after it was moved into his vehicle, in violation of 19 CSR 25-30.031 (2014).

         Standard of Review

         In this court-tried case, we "will affirm the trial court's judgment 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." Bouillon v. Dir. of Revenue, 306 S.W.3d 197, 200 (Mo. App. E.D, 2010). Appellant's points on appeal also involve interpretation of sections of the Code of State Regulations. The construction of an administrative rule or regulation is a legal question that we review de novo. Bartholomew, 462 S.W.3d at 470.

         Point I

         Appellant argues the trial court erroneously admitted Appellant's breath test result without proper foundation because the Director failed to show compliance with 19 CSR 25-30.050 in that Detective Albert ...


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