Court of Appeals of Missouri, Western District, Second Division
CHELSEA F. WEISNER, Respondent,
DIRECTOR OF REVENUE, Appellant.
from the Circuit Court of Jackson County The Honorable Susan
E. Long, Judge.
Before: Alok Ahuja, P.J., and Thomas H. Newton and Mark D.
Chelsea Weisner was arrested for driving while intoxicated.
After her blood alcohol concentration tested over the legal
limit, the Director of Revenue suspended her driving
privileges. Weisner filed a petition for a trial de
novo in the Circuit Court of Jackson County. Following a
bench trial, the circuit court held that the results of the
breath test establishing Weisner's blood alcohol
concentration was inadmissible. The court excluded the test
results because the breath test was conducted in a law
enforcement patrol vehicle, which the court concluded was
improper under the regulations promulgated by the Department
of Health and Senior Services ("DHSS"). Because it
found that there was no competent evidence establishing that
Weisner had a blood alcohol concentration above the legal
limit, the circuit court set aside the suspension of
Weisner's driving privileges.
Director of Revenue appeals. Consistent with our recent
decision in Baker v. Director of Revenue, No.
WD81325, 2019 WL 610383 (Mo. App. W.D. Feb. 13, 2019), we
hold that the circuit court erroneously determined that the
results of Weisner's breath test were inadmissible. We
accordingly reverse the judgment of the circuit court, and
remand the case for further proceedings consistent with this
approximately 3:00 a.m. on July 30, 2016, Missouri State
Highway Patrol Trooper Aaron Engelhart observed a car driven
by Weisner on westbound Interstate 70 in Jackson County.
Weisner's car failed to stay within a single lane, and
Trooper Engelhart initiated a traffic stop. When Weisner was
seated in his patrol car, Trooper Engelhart noted a strong
odor of intoxicants coming from her breath, and that
Weisner's speech was slurred and rambling. Weisner
admitted that she had consumed two alcoholic beverages, and
that her last drink was approximately one hour earlier.
permitted Trooper Engelhart to perform the horizontal gaze
nystagmus ("HGN") test. Weisner exhibited six clues
of intoxication on the HGN test. Trooper Engelhart then asked
Weisner whether she would perform field sobriety tests, and
she indicated that she would. When they exited Trooper
Engelhart's patrol vehicle to perform the tests, Weisner
failed to follow Trooper Engelhart's directions, and
walked toward the traffic lanes of the highway. Because he
feared that Weisner would not stop and would walk into
traffic, Trooper Engelhart grabbed her arm and pulled her
back onto the highway's shoulder. Weisner stated that she
would not return to Trooper Engelhart's vehicle. He then
placed her under arrest for driving while intoxicated.
they were again seated in Trooper Engelhart's patrol
vehicle, the Trooper read Weisner Missouri's Implied
Consent warning, and Weisner agreed to submit to a breath
test. Trooper Engelhart performed a mouth check, and Weisner
stated that she had nothing in her mouth. Trooper Engelhart
then observed Weisner for twenty-four minutes, during which
she did not smoke, vomit, or introduce anything into her
mouth. Weisner then submitted a breath sample, which was
tested using the Alco-Sensor IV with printer
("AS-IV-P") breath analyzer. The breath testing
occurred inside Trooper Engelhart's patrol vehicle. The
breath test result indicated that Weisner's blood alcohol
concentration was .104%.
Director of Revenue suspended Weisner's driving
privileges pursuant to § 302.505, RSMo. The suspension
of Weisner's driver's license was upheld following an
administrative hearing. She then petitioned the circuit court
for a trial de novo pursuant to § 302.535,
circuit court conducted a bench trial on October 3, 2017.
When the Director's counsel asked Trooper Engelhart to
testify concerning the results of the breath test,
Weisner's counsel objected that performing the breath
test in Trooper Engelhart's patrol vehicle violated the
DHSS's regulations. The court overruled the objection,
although it indicated that it would reexamine the
admissibility issue following the conclusion of the evidence,
based on legal authorities submitted by the parties. Trooper
Engelhart then testified that Weisner's breath test
indicated that she had a blood alcohol concentration of
circuit court entered its judgment setting aside the
suspension of Weisner's driving privileges on December
18, 2017. The judgment found that the testing of
Weisner's breath occurred in an improper location, and
that the breath test results were accordingly inadmissible.
The court recognized that 19 C.S.R. 25-30.050(2) specifies
that "[b]reath analyzers are to be used within buildings
or vehicles used for driving-while-intoxicated
enforcement." The circuit court interpreted this
regulation as authorizing breath testing "in a building
or in a vehicle specifically designed for its placement, e.g.
a mobile van, 'BAT' [Breath Alcohol Testing] vehicle,
etc." The judgment also noted that the report form
included in the DHSS's regulations requires the device
operator to certify that "[n]o radio transmission
occurred inside the room where and when the test was
being conducted." 19 C.S.R. 25-3.060, Form #8 (emphasis
added). The court concluded that "the Officer's
patrol car is not a room as required by the certification on
[DHSS] Form 8."
its exclusion of the breath test results, the circuit court
concluded that the Director had failed to submit
"admissible evidence of [Weisner] having provided a
sample in excess of .08 BAC." The court accordingly ...