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Moore v. Director of Revenue

Court of Appeals of Missouri, Eastern District, Fourth Division

January 14, 2020

MATTHEW J. MOORE, Respondent,

          Appeal from the Circuit Court of of St. Louis County 16SL-AC32752 Honorable Richard M. Stewart


          James M. Dowd, Presiding Judge

         The fleeting life of a portable printer's battery gives rise to this appeal. In this driver's license suspension case, we are asked to determine whether the results of a blood alcohol content (BAC) breathalyzer test are admissible even though the printer connected to the Alco-Sensor IV breathalyzer machine lost power before it produced a printed ticket.

         The Director of Revenue appeals from the judgment of the circuit court reinstating the driving privileges of Matthew J. Moore. Following a trial de novo held before a commissioner, the circuit court entered judgment adopting the commissioner's conclusion that the Director failed to make a prima facie case for the suspension of Moore's driver's license. The court found that although the breathalyzer test given to Moore showed his blood alcohol level exceeded the legal limit, the officer failed to strictly comply with the operational checklist set forth in 19 CSR 25-30.060(3) because of the printer's loss of power. As a result, the court held the test results were per se unreliable and inadmissible.

         The Director now asserts the circuit court erroneously applied the law in excluding the test results because there was no evidence the machine malfunctioned or that the digital readout showing Moore's BAC was 0.124% was not accurate or otherwise reliable particularly since the BAC on the breathalyzer ticket that was printed later once the printer was reconnected to electrical power matched the digital readout. We find the Director's argument is well taken and we reverse and remand for further proceedings consistent with this opinion.


         On August 27, 2016, around 9:30 p.m., two St. Louis County police officers including Officer Keith Crawford, Jr., observed Moore commit multiple traffic violations while driving a black Honda civic northbound on Laclede Station Road near Watson Road in Webster Groves, Missouri. Moore remained stationary at a green traffic light for five seconds and, once he continued driving, his vehicle drifted into adjacent lanes without activating his turn signal. The officers pulled Moore over at the intersection of Laclede Station Road and Archbishop May Road.

         Upon approach, the officers found Moore smelled strongly of alcohol; his eyes were bloodshot, watery, and glassy; his speech was slurred, stuttering, mumbling, and belching; and he could not walk without staggering and stumbling. Moore consented to multiple field sobriety tests that he was unable to complete successfully, including the Horizontal Gaze Nystagmus test, the Walk and Turn test, and the One Leg Stand test. He admitted he drank two beers and one shot of alcohol just prior to driving and being pulled over.

         The officers placed Moore under arrest. Officer Blake Snyder responded to the scene to administer a breathalyzer test using the Alco-Sensor IV, which he was certified to operate. As required, before administering the test, Officer Snyder observed Moore for 15 minutes starting at 10:02 p.m. and verified that Moore did not smoke, vomit, or have anything in his mouth during that time. When the 15-minute waiting period had ended at 10:17 p.m., Officer Snyder administered the Alco-Sensor IV breathalyzer test, to which Moore consented.

         At 10:19 p.m. Officer Snyder obtained a breath sample from Moore and the breathalyzer machine indicated on its digital readout that Moore's blood alcohol level was 0.124%. But the battery on the printer connected to the breathalyzer machine became depleted before Officer Snyder could print the test results. Officer Crawford noted in his report that Officer Snyder advised he captured the breath sample prior to the printer losing power and that "[a]t no point was the [breathalyzer machine] compromised in any way during the testing process." Officer Snyder went immediately to the nearby Marlborough, Missouri City Hall where he restored power to the printer and produced a printed ticket of the test results showing Moore's blood alcohol level was 0.124% at 10:19 p.m.

         The Department of Revenue suspended Moore's driving privileges and denied his request for reinstatement. Moore then filed a petition to set aside the suspension and a trial de novo was held before a St. Louis County Circuit Court commissioner. At trial, the Director adduced the following exhibits documenting that Moore's blood alcohol level was 0.124% at 10:19 p.m., on August 27, 2016: the alcohol influence report and arrest report prepared by Officer Crawford; the blood alcohol test report completed by Officer Snyder after administering the breathalyzer test; the printed ticket of test results Officer Snyder produced upon restoring power to the printer; and Officer Crawford's police report recounting Moore's arrest and Officer Snyder's administration of the breathalyzer test. Unfortunately, Officer Snyder was unable to testify at the trial de novo in this case because he was killed in the line of duty in an unrelated incident less than two months after Moore's arrest.

         Following the trial de novo, the commissioner issued findings and recommendations that Moore's driving privileges be reinstated. The commissioner found the loss of power to the printer constituted a deviation from the operational checklist set forth pursuant to 19 CSR 25-30.060(3) and rendered the test results unreliable and inadmissible. Accordingly, the commissioner concluded the Director failed to establish Moore's blood alcohol level exceeded 0.8% and did not meet its burden to establish a prima facie case for the suspension of Moore's driving privileges.

         The circuit court adopted the findings and conclusions of the commissioner. The Director filed a motion for new trial or to amend the judgment on the grounds that the court erroneously applied the law by excluding the breathalyzer test results from evidence. That motion was denied, and this appeal follows.

         Standard of Review

         We will affirm the circuit court's judgment unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. White v. Dir. of Revenue,321 S.W.3d 298, 307-08 (Mo.banc 2010); Murphy v. Canon, 536 S.W.2d 30, 32 (Mo.banc 1976). To set aside a judgment as "against the weight of the ...

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