Court of Appeals of Missouri, Eastern District, Third Division
EVERET J. MARQUART, Appellant,
DIRECTOR OF REVENUE, Respondent.
from the Circuit Court of Franklin County 15AB-AC00875
Honorable David L. Hoven
M. GAERTNER, JR., PRESIDING JUDGE
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.
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.
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.
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.
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
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.
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 ...