Johnson v. Director of Revenue
411 S.W.3d 878
Mo. Ct. App.2013Background
- On Dec. 13, 2011 Jennifer Johnson was arrested for suspected DWI; an Intoxilyzer 5000 breath test first printed "invalid sample" at 9:19 p.m., then five minutes later produced a .209% BAC.
- The Director administratively suspended Johnson's license; she requested a trial de novo under §302.535.
- At the circuit trial the Director introduced certified DOR records (including the breath results); Officer Mustain did not testify.
- Johnson objected that an "invalid sample" indicates possible mouth alcohol and that the Intoxilyzer manual/DHSS protocol require an additional 15-minute observation before retesting; the Director did not submit the manual or additional evidence.
- The trial court found the first reading unreliable, concluded the officer failed to follow the manual/DHSS rules by retesting after five minutes, and reinstated Johnson's driving privileges.
- The Director appealed, arguing (1) the court misapplied the law regarding required observation periods and (2) the judgment lacked evidentiary support. The appellate court affirmed.
Issues
| Issue | Plaintiff's Argument (Johnson) | Defendant's Argument (Director) | Held |
|---|---|---|---|
| Whether the .209% breath result was reliable when taken 5 minutes after an "invalid sample" | "Invalid sample" indicates mouth alcohol; operator should have waited additional 15 minutes per Intoxilyzer/DHSS guidance, so the second result is unreliable | No legal requirement to wait 15 minutes after an invalid reading; foundational admissibility standards satisfied so result should be credited | Court credited Johnson's contesting of reliability; as factfinder it could disbelieve the .209% result and did so |
| Whether trial court erred as a matter of law by disbelieving an otherwise admissible breath result | Trial court properly exercised factfinding discretion; Director still must prove BAC > .08 by a preponderance | Director argued that satisfying foundational admissibility should make result presumptively valid absent expert rebuttal | Court held admissibility is distinct from credibility; Director bears burden of persuasion and production (per White), so court may disbelieve Director's evidence |
| Whether judgment was unsupported by evidence because Johnson offered no expert/manual to rebut result | Johnson need not present expert; Director had burden to produce and failed to produce manual or witnesses; adverse inference allowed | Director contended lack of expert/manual meant no substantial evidence to support court's finding | Court held Director's failure to produce manual or testimony permitted adverse inference; judgment affirmed |
| Whether precedent requires shifting burden to driver to rebut breath test once foundational proof offered | Johnson relied on precedent allowing factfinder to disbelieve Director even without driver experts | Director argued prior cases required driver to present expert to challenge accuracy | Court followed White and O'Rourke: burden remains with Director; no presumption of validity shifts burden to driver |
Key Cases Cited
- White v. Director of Revenue, 321 S.W.3d 298 (Mo. banc 2010) (places burden of production and persuasion on Director in license-suspension trials)
- Martin v. Director of Revenue, 142 S.W.3d 851 (Mo. App. 2004) (trial court may find a second breath test unreliable after short interval following an "invalid sample")
- O'Rourke v. Director of Revenue, 409 S.W.3d 443 (Mo. App. 2013) (distinguishes admissibility from credibility; court may disbelieve breath result absent additional observation)
- Tweedy v. Director of Revenue, 412 S.W.3d 389 (Mo. App. 2013) (discusses factfinder's role in assessing breath-test reliability)
- Irwin v. Director of Revenue, 365 S.W.3d 266 (Mo. App. 2012) (foundational requirements for admitting breath test results)