Grant Louis Messner v. Director of Revenue, 2015 Mo. App. LEXIS 749

Background

In the early morning of June 20, 2013, Officer Lawrence stopped Messner for weaving, smelled alcohol, administered field sobriety tests, and arrested him for DWI.
At the station the Intoxilyzer 5000 printed an evidence ticket at 2:17 a.m. reading “INVALID TEST – SUBJECT DID NOT PROVIDE VALID SAMPLE.” A subsequent test at 2:21 a.m. produced a .166% BAC reading.
The Director suspended Messner’s license administratively; Messner sought a trial de novo in circuit court under §302.535 RSMo.
The Director introduced certified records including the second test ticket (.166%) but did not include or reference the first “invalid test” printout in officer reports or direct testimony; the printout was later introduced by Messner.
Messner argued the first error required a new 15-minute observation before retesting (per the Intoxilyzer manual and checklist); the circuit court found the Director’s evidence not credible, concluded the second test was unreliable, and reinstated Messner’s license.
On appeal, the Director argued lack of substantial evidence and misapplication of law (DHSS regulations and the operator’s manual); the Court of Appeals affirmed.

Issues

Issue	Plaintiff's Argument (Messner)	Defendant's Argument (Director)	Held
Whether substantial evidence supports the trial court’s finding that the officer’s actions contradicted the Intoxilyzer 5000 manual and rendered the second BAC unreliable	The error message from the first attempt meant a valid sample wasn’t provided and—because the officer failed to observe for an additional 15 minutes and complete a separate checklist—any subsequent test was unreliable	The manual does not specifically require an additional 15-minute observation after the “INVALID TEST – SUBJECT DID NOT PROVIDE VALID SAMPLE” message, so no additional wait was required and the second reading is reliable	Affirmed. Court credited Messner’s evidence and officer’s omissions; manual’s checklist language and silence about corrective action supported the finding that officer should have completed separate checklist/observation for each test, undermining reliability of the .166% result
Whether the circuit court misapplied law by refusing to give controlling effect to DHSS regulations or the manual such that a properly conducted initial 15-minute observation precludes credibility challenges	The prior observation and regulatory framework do not insulate the Director’s evidence from credibility review; the Director bears burden to produce persuasive evidence and the finder of fact may disbelieve breath results even if admissible	The 2012 DHSS amendments (and the manual) show a 15-minute observation is sufficient to ensure dissipation of mouth alcohol, so courts should not second-guess credibility where regulations/manual complied with	Affirmed. Court may assess credibility regardless of admissibility; DHSS rules govern admissibility and foundational proof, not automatically resolve weight or reliability in license-suspension de novo proceedings

Key Cases Cited

Johnson v. Dir. of Revenue, 411 S.W.3d 878 (Mo. App. 2013) (standard of review and allocation of burdens in license-suspension trial de novo)
White v. Dir. of Revenue, 321 S.W.3d 298 (Mo. banc 2010) (eliminated presumption that Director's evidence is true; Director bears burden of production and persuasion)
O’Rourke v. Dir. of Revenue, 409 S.W.3d 443 (Mo. App. 2013) (elements Director must prove to suspend license and use of breath test evidence)
Martin v. Dir. of Revenue, 142 S.W.3d 851 (Mo. App. 2004) (court may require additional observation after an initial invalid/invalid-sample reading; trier of fact resolves credibility)
Collins v. Dir. of Revenue, 399 S.W.3d 95 (Mo. App. 2013) (admissibility distinct from credibility; finder of fact determines scientific reliability)
Bruce v. Dep’t of Revenue, 323 S.W.3d 116 (Mo. App. 2010) (deference to trial court on contested factual matters)