Daniel R. McGough v. Director of Revenue, State of Missouri
2015 Mo. App. LEXIS 560
| Mo. Ct. App. | 2015Background
- On Oct. 19, 2012 Officer Weeke pursued and arrested Daniel McGough after a parking‑lot flight; Weeke observed signs of intoxication and McGough registered 0.172% BAC on an Intoximeter breath test.
- The breathalyzer was maintained on Sept. 29, 2012 using a single simulator solution (0.10%) and the maintenance report reflected compliance with the regulation then in force.
- The Director administratively suspended McGough’s license; McGough sought a trial de novo in St. Charles County (trial June 19, 2014).
- At trial the court admitted the maintenance report but excluded the breath test result, reasoning that later regulatory changes mandated multi‑point calibration and that McGough should receive the benefit of the “positive change.”
- The trial court reinstated McGough’s driving privileges; the Director appealed.
- The Court of Appeals reversed, holding the maintenance report and breath test were admissible because the regulation in effect at maintenance time governed (and the later rule contained a savings clause); even under the 2014 rule a single approved concentration was sufficient.
Issues
| Issue | McGough's Argument | Director's Argument | Held |
|---|---|---|---|
| Whether breathalyzer maintenance and test results were admissible given regulatory changes between maintenance (Sept. 29, 2012) and trial (June 19, 2014). | The later (more stringent) regulation should apply and the maintenance/report were insufficient, so the test result should be excluded. | The maintenance report complied with the rules in effect when maintenance occurred; the 2014 rule contains a savings clause validating earlier-compliant reports; admission was proper. | Reversed trial court: maintenance report and breath test admissible. The savings clause validates earlier-compliant maintenance; alternatively, 2014 rule allowed a single approved concentration. |
Key Cases Cited
- Murphy v. Carron, 536 S.W.2d 30 (Mo. 1976) (standard of appellate review for trial court findings)
- White v. Director of Revenue, 321 S.W.3d 298 (Mo. banc 2010) (Director’s burden to establish suspension elements)
- Irwin v. Director of Revenue, 365 S.W.3d 266 (Mo. App. 2012) (foundation required for admission of breathalyzer evidence)
- Salamone v. Director of Revenue, 991 S.W.2d 749 (Mo. App. 1999) (prior decision applying savings clause to validate earlier maintenance reports)
- Hunt v. Director of Revenue, 10 S.W.3d 52 (Mo. App. 1999) (same)