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Nix v. Director of Revenue

Court of Appeals of Missouri, Western District, Third Division

April 30, 2019

ICTOR M. NIX, Respondent,
v.
DIRECTOR OF REVENUE, Appellant.

          APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY, MISSOURI THE HONORABLE MARY F. WEIR, JUDGE

          Before: Thomas H. Newton, Presiding Judge, Anthony Rex Gabbert, Judge and Edward R. Ardini, Jr., Judge

          OPINION

          EDWARD R. ARDINI, JR., JUDGE

         The Director of Revenue ("Director") appeals the judgment of the Circuit Court of Jackson County setting aside the suspension of Victor Nix's ("Nix") driving privileges following his arrest for driving while intoxicated. The Director argues that the trial court erred when it excluded Nix's breath test results based on the failure of the officer who administered the test to sign the certification on the Blood Alcohol Test Report as required by Department of Health and Senior Services ("DHSS") regulations. We reverse the trial court's judgment and remand the case for a new trial.

         Factual and Procedural Background

         On May 6, 2017, Officer Evan Tarwater with the Kansas City, Missouri Police Department observed a black Infiniti commit multiple traffic violations that included failing to stop at a stop sign until traveling midway through the intersection. Officer Tarwater executed a traffic stop and identified Nix as the driver. Nix's young daughter was in the backseat. While engaging Nix in conversation, Officer Tarwater noted a strong odor of alcohol emanating from his breath and that his eyes were bloodshot and glassy. When asked if he had been drinking, Nix told Officer Tarwater that he had had a "couple beers."

         Officer Tarwater returned to his cruiser to check information on his computer. When he returned to Nix's vehicle, he overheard Nix informing someone on his phone that he was going to jail and that he needed someone to come pick up his daughter. While listening to this conversation, Officer Tarwater noticed that Nix's speech was slurred. After Nix finished his call, he agreed to perform field sobriety tests.

         Officer Tarwater had Nix complete the walk-and-turn test and the one-leg-stand test.[1]During the walk-and-turn test, Nix exhibited seven clues, including failing to maintain a heel-to-toe stance, slowing or stopping while completing the test, failing to touch heel-to-toe, stepping off the line, and raising his arms more than six inches. Two clues on the walk-and-turn test indicate probable intoxication.

         Nix also performed the one-leg-stand test, but was unable to complete it. During the test, Nix swayed, failed to stand rigid with his leg locked out, used his arms for balance, raised his arms more than six inches, and put his foot down. Nix did not provide any physical reason for being unable to successfully perform the test.

         Based on his observations of Nix during the traffic stop and Nix's performance during the field sobriety tests, Officer Tarwater believed that Nix was under the influence of alcohol. Nix was arrested and transported to the police station where Officer Tarwater read him the implied consent warning.[2] Nix agreed to submit to a breath test, the results of which indicated a blood alcohol content of .200 percent.

         Nix's driver's license was administratively suspended by the Director. Nix challenged the suspension by petitioning for a trial de novo pursuant to section 302.535, RSMo.[3] The Director presented the testimony of Officer Tarwater and a certified copy of the Director's file, which included, among other documents, the Alcohol Influence Report, Officer Tarwater's Incident and Crime Report, breath test maintenance reports and permits, and the Blood Alcohol Test Report - Intoxilyzer 8000 form.[4]

         At trial, Officer Tarwater testified that he held a permit to operate the Intoxilyzer 8000[5]and, as it related to Nix's test, he completed the operational checklist and did not deviate from the DHSS-approved procedure for properly administering a breath test.[6] Officer Tarwater further testified that the testing instrument was functioning properly and that no radio transmission occurred inside the room where the test was being conducted. Officer Tarwater acknowledged that he did not sign the certification on the Blood Alcohol Test Report form after he completed the test, but stated that he "verified the information when [he] completed the test[, ]" and signed the Alcohol Influence Report, which also contained the test results and a certification.

         Nix objected to the admission of the breath test results on foundational grounds based on Officer Tarwater's failure to sign the certification on the Blood Alcohol Test Report form.[7] The trial court sustained Nix's objection and excluded the ...


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