FROM THE CIRCUIT COURT OF RIPLEY COUNTY HONORABLE THOMAS D.
Francis, P.J., Scott, J., and Sheffield, J.
Director of Revenue appeals a judgment setting aside an
administrative suspension of Respondent's driving
privileges. We reverse and remand because the court
incorrectly applied the law in finding insufficient
foundation to admit stipulated blood-alcohol content (BAC)
petitioned for judicial review of an administrative
suspension of her driving privileges due to driving with an
excessive blood-alcohol level. The case was tried on
stipulated facts summarized below.
to a report of an injury crash, a highway patrol trooper
found Respondent's car in the ditch with Respondent lying
nearby, being attended to by emergency responders. Respondent
admitted she was driving at the time of the crash and there
were no other occupants in the vehicle. She stated that she
had consumed "way too many" intoxicants, but none
since the crash. Respondent exhibited a strong odor of
intoxicants, had watery and bloodshot eyes, and slurred her
trooper attempted to administer a preliminary breath test but
Respondent did not produce a sufficient sample. Respondent
was arrested for DWI and given Miranda and
implied-consent warnings. The trooper requested a blood draw and,
to quote the stipulation, Respondent "agreed to the
test." A member of the ambulance crew tried three or
four times to draw blood at the scene but could not do so.
was transported approximately 30 miles to the hospital, where
a nurse successfully drew a blood sample and turned it over
to the trooper. Testing of that sample showed
Respondent's BAC to be 0.182% by weight. That result was
certified in a lab report, referenced in the trooper's
alcohol influence report, and stipulated to at trial.
trial court set aside the driving suspension, finding
probable cause to arrest Respondent for an alcohol-related
traffic offense, but "an insufficient foundation for
admission of the test result, due to  multiple tests in
excess of the number permitted by law and no implied
Director claims the quoted ruling was error. We agree.
typically review evidentiary rulings for abuse of discretion.
Vernon v. Dir. of Revenue, 142 S.W.3d 905, 909
(Mo.App. 2004). But when, as here, "the issue before the
trial court involves only stipulated facts and does not
involve resolution by the trial court of contested testimony
… the only question before the appellate court is
whether the trial court drew the proper legal conclusions
from the facts stipulated." White v. Dir. of
Revenue, 321 S.W.3d 298, 308 (Mo. banc 2010). "In
such cases, the issue is legal, and there is no finding of
fact to which to defer." Id.
parties argue at some length whether multiple blood-draw
attempts should be treated the same or differently than our
courts have treated multiple attempts to collect a sufficient
breath sample for breathalyzer testing. We need not ...