from the Circuit Court of Franklin County Honorable Stanley
DENVIR STITH, JUDGE
Carvalho appeals the suspension of his driver's license
for driving while intoxicated. He argues the circuit court
erred in admitting the report showing his blood alcohol
content (BAC) was .087 percent, over the legal limit, because
the director of revenue did not present evidence showing the
report was timely filed with the department of health and
senior services (DHSS). He also alleges the implied consent
notice failed to comply with due process because it misled
him in stating his license would be suspended immediately if
he refused the breath test and in failing to tell him the
consequences of taking the breath test. Finally, he alleges a
later notice of suspension given him after he failed the
breath test did not adequately inform him what the director
of revenue would have to prove to suspend his license.
Court affirms. The filing of the report with DHSS is a
collateral requirement that does not affect the performance
of the test or its validity or accuracy, and, so, a failure
to timely make that filing does not preclude admission of the
report. Further, the implied consent notice was accurate in
telling Mr. Carvalho his license would be suspended
immediately should he refuse the breath test. The fact he
would then be given a 15-day permit did not change that fact.
Nothing in Missouri law or in the due process clause required
the officer to tell Mr. Carvalho the consequences of taking
the breath test, to which he had already had consented by
driving on Missouri's roads. It was only as to the
consequences of withdrawing that consent that he required
notice. Finally, the notice of suspension accurately told Mr.
Carvalho the facts required by statute to suspend his license
and how to request a hearing. Due process did not require the
officer to explain the law regarding the burden of proof the
director would bear at that hearing.
FACTUAL AND PROCEDURAL BACKGROUND
officer from the Washington, Missouri, police department
stopped Mr. Carvalho on May 10, 2017, for speeding. Mr.
Carvalho had crutches in the car and stated he had been at a
hospital due to a foot injury. The officer's report
states he suspected Mr. Carvalho was driving while
intoxicated based on his "very strong odor of
intoxicants" and "watery, bloodshot, and
glassy" eyes. Mr. Carvalho said he had not been drinking
but declined to allow the officer to perform a horizontal eye
nystagmus test, stating, "I ain't doing that, you
can talk to my lawyer." In the incident report, the
officer noted Mr. Carvalho slurred his words when he spoke.
The officer asked Mr. Carvalho to exit the vehicle, which he
did with the assistance of his crutches. The officer asked
Mr. Carvalho to provide a sample of his breath and advised
him of Missouri's implied consent law. When Mr. Carvalho
refused, the officer arrested him for speeding and driving
while intoxicated and transported him to the Washington
police station, the officer asked Mr. Carvalho to provide a
breath sample and read him what is commonly referred to as
"the implied consent warning" contained in the
Missouri department of revenue alcohol influence report:
You are under arrest. I had reasonable grounds to believe you
were driving a motor vehicle while in an intoxicated or
drugged condition. To determine the alcohol or drug content
in your blood, I'm requesting you to submit to a chemical
test of your breath. If you refuse to take the test, your
driver's license will immediately be revoked for one
year. Evidence of your refusal to take the test may be used
against you in prosecution in a court of law. Having been
informed of the reasons for requesting the test, will you
take the test?
Carvalho asked to speak with an attorney. After doing so, Mr.
Carvalho agreed to take the breath test. It showed Mr.
Carvalho had a BAC of .087 percent. When a breath test shows
a BAC above .08 percent, the officer:
2. … shall take possession of any driver's license
issued by this state which is held by the person [and]
… shall issue a temporary permit which is valid for
fifteen days after its date of issuance and shall also give
the person arrested a notice which shall inform the person of
all rights and responsibilities pursuant to sections 302.500
to 302.540. … The notice shall also contain a
detachable form permitting the arrested person to request a
§ 302.520.1, .2. 
required by this statute, the officer took possession of Mr.
Carvalho's license and provided him with a 15-day
temporary permit with notice that his "driving privilege
will be suspended or revoked 15 days from the date of this
notice if you do not request a hearing" and with a form
explaining how to request a hearing. As required by section
302.510, the officer prepared and forwarded a report to the
department of revenue. Mr. Carvalho does not contest these
procedures were followed.
on the officer's report, the department determined Mr.
Carvalho was arrested upon probable cause to believe he was
driving a motor vehicle with a BAC above .08, and suspended
his license. Section 302.505.2 provides this
determination "shall be final unless a hearing is
requested and held. If a hearing is held, the department
shall review the matter and make a final determination on the
basis of evidence received at the hearing." Mr. Carvalho
timely requested a hearing. § 302.530. The hearing
officer sustained the suspension. Mr. Carvalho then timely
filed a petition for trial de novo. § 302.535.
302.312 provides, "Copies of all records lawfully filed
in the offices of the department of revenue or the bureau of
vital records of the department of health and senior services
and copies of any records, properly certified by the
appropriate custodian or the director," are admissible
as evidence. Accordingly, the department submitted as exhibit
A at the trial de novo a certified copy of the formal notice
of suspension, as well as the alcohol influence report, blood
alcohol test report, uniform citation, DHSS "Intox
EC/IRII Maintenance Report," incident report, arrest
report, misdemeanor probable cause statement, and Mr.
Carvalho's driving record. The department did not present
any live testimony.
Carvalho objected to the admission of the portion of exhibit
A containing his .087 BAC test results because he alleged
admission would violate Missouri regulations and his due
Your Honor, my only objection to Exhibit A would be any
introduction of the alleged BAC result as they are found in
that exhibit. Specifically, my objection would be that my
client -- there was no probable cause for the arrest. My
client's due process rights were violated in obtaining
the breath result, and also the foundational requirements in
19 CSR 25-30.0313 were not satisfied.
with what he told the officer at the scene, Mr. Carvalho
testified in his defense that he did not drink at all on the
day of his arrest and had recently left the hospital after
injuring his foot just prior to the time he was pulled over.
Although he spoke with a lawyer after receiving the warning,
he said he took the breath test based on use of the word
"immediately" in the warning because he thought
this meant if he did not take the test he would be prohibited
from driving for the remainder of the year to work and to
school and was concerned he would lose his job. He testified
he did not realize he would get a temporary permit.
circuit court sustained the suspension of Mr. Carvalho's
driving privilege. Mr. Carvalho's timely appeal was
transferred to this Court because Mr. Carvalho challenges the
validity of sections ...