Court of Appeals of Missouri, Western District, Third Division
from the Circuit Court of Lafayette County The Honorable
Kelly H. Rose, Judge.
Before: Anthony Rex Gabbert, P.J., and Victor C. Howard and
Alok Ahuja, JJ.
Joseph Baker was arrested for driving while intoxicated.
After his blood alcohol concentration tested over the legal
limit, the Director of Revenue suspended his driving
privileges. Baker then filed a petition for a trial de
novo in the Circuit Court of Lafayette County. At trial,
the circuit court refused to admit the results of the breath
test performed on Baker. The court excluded the test results
because it concluded that the location of the testing (inside
a law enforcement patrol vehicle) violated regulations
promulgated by the Department of Health and Senior Services
("DHSS"). After excluding the breath test results,
the court found that the Director of Revenue had failed to
prove that Baker had driven his vehicle with an excessive
blood alcohol concentration, and it accordingly set aside the
suspension of Baker's driver's license.
Director of Revenue appeals. Because we conclude that the
circuit court excluded the breath test results on an
erroneous basis, we reverse, and remand the case to the
circuit court for a new trial.
8, 2017, Missouri State Highway Patrol Trooper Trent Baxter
initiated a stop of Baker's vehicle in Lafayette County
after observing that the vehicle had only one working
taillight. Upon making contact with Baker, Trooper Baxter
immediately detected a strong odor of alcohol. Trooper Baxter
also observed that Baker's speech was slurred, and his
eyes were bloodshot. The Trooper observed an open case of
beer on the passenger-side floorboard, and an open beer can
behind the front passenger seat. Baker stated that he had
consumed about five beers.
agreed to perform a series of field sobriety tests. Based on
Baker's performance, Trooper Baxter arrested him for
driving while intoxicated. The Trooper read Missouri's
Implied Consent law to Baker, and Baker agreed to submit to a
breath test. Baker was instructed to remove the chewing
tobacco from his mouth, and after he did so Trooper Baxter
performed a mouth check and began the 15-minute observation
period. After completing the observation period, Trooper
Baxter administered a breath test using an Alco-Sensor IV
with Printer testing machine ("AS-IV-P"). The test
was administered inside the Trooper's patrol car. Trooper
Baxter's first two attempts to collect a breath sample
failed because the testing device detected radio frequency
interference ("RFI"). After Trooper Baxter turned
off the radios in his own patrol car, and asked the other
responding officers to turn off their radios, he was able to
collect a valid breath sample. The testing machine indicated
that Baker's blood alcohol concentration was .181%.
Director suspended Baker's driving privileges pursuant to
§ 302.505, RSMo. The suspension of Baker's
driver's license was upheld following an administrative
hearing. Baker then petitioned the circuit court for a trial
de novo pursuant to § 302.535, RSMo.
circuit court conducted a bench trial on November 9, 2017. At
trial, the Director's counsel asked Trooper Baxter to
testify regarding the result of Baker's breath test.
Baker's counsel objected on the grounds that the breath
test was not conducted in an approved location. Although the
circuit court initially overruled Baker's objection, it
later reversed its previous ruling, and sustained Baker's
objection to the admission of the breath test results. The
court sustained Baker's objection because the form of
Blood Alcohol Test Report promulgated by DHSS requires the
operator to certify that "[n]o radio transmission
occurred inside the room where and when this [breath
analysis] was being conducted." 19 C.S.R. 25-30.060(3),
Form #8 (emphasis added). The court recognized that Trooper
Baxter's patrol vehicle was a permissible location for
conducting the breath test under 19 C.S.R. 25-30.050(2).
Nevertheless, the court reasoned that "[w]hen you got on
this form it's to be done in a room, and this form has
got to be used, it's in conflict with" 19 C.S.R.
25-30.050(2). The court concluded that the Director had
failed to establish that the breath test complied with the
DHSS-mandated procedures because the test was not conducted
inside a "room"; "[a] patrol car is not a
the circuit court announced that it was excluding the breath
test results, the Director made an offer of proof, during
which Trooper Baxter testified that Baker's blood alcohol
concentration was .181% based on the result of the breath
test he performed in his patrol car.
circuit court entered its judgment on November 29, 2017. The
court found that the Director had proven that Baker was
arrested based on probable cause to believe that he had
committed an alcohol-related traffic offense. The circuit
court also found that "the tests' administration in
the front passenger seat of [Trooper] Baxter's patrol car
satisfied the requirements of 19 CSR 25-30.050(2),"
which provides that "[b]reath analyzers are to be used
within buildings or vehicles used for
driving-while-intoxicated enforcement." The court
nevertheless found that the test had been performed in an
improper location, because the Blood Alcohol Test Report form
promulgated by DHSS for use with the AS-IV-P required the
device operator to certify that "[n]o radio transmission
occurred inside the room where and when this was being
conducted." The judgment states that "[t]his Court
finds that [Trooper] Baxter's patrol car is not a room as
required by the certification on Form #8."
on its "conclusion that the breath testing results are
inadmissible," the court found "that there was no
credible evidence that [Baker's] blood alcohol content
was 0.08% or higher as required by Missouri law." The
court therefore set aside the suspension of Baker's
Director of Revenue appeals.