487 S.W.3d 496
Mo. Ct. App.2016Background
- On May 2, 2014, Jordan Rundell was arrested for suspected DWI; his breath test on an Intox EC/IR II registered a BAC of .189%.
- The Department of Revenue (Director) administratively suspended Rundell's driving privileges; Rundell requested a trial de novo challenging admissibility of the breath test.
- Rundell argued 19 CSR 25-30.051(5) (effective Dec. 30, 2012) required use of all three compressed ethanol-gas mixtures (0.10%, 0.08%, 0.04%) to verify/calibrate the machine; the maintenance report showed only a 0.08% mixture was used on May 1, 2014.
- The trial court sustained Rundell’s objection and excluded the breath test results, concluding the regulation’s use of "and" required all three mixtures. The court ordered removal of the suspension and reinstatement of driving privileges.
- Director moved for new trial, asserting the regulation had been amended (effective Feb. 28, 2014) to use "or," permitting use of a single approved mixture; the maintenance check thus complied. The trial court’s judgment was not resolved on remand, and Director appealed.
Issues
| Issue | Rundell's Argument | Director's Argument | Held |
|---|---|---|---|
| Whether 19 CSR 25-30.051(5) required use of all three compressed ethanol-gas mixtures to establish foundation for breath-test admissibility | The regulation's wording ("and") required all three values be used in calibration/verification | The regulation had been amended to use "or," so only one approved mixture needed; the May 1, 2014 check (0.08%) complied | The court held the Feb. 28, 2014 version used "or," permitting a single approved mixture; breath test admissible |
| Whether the trial court erred by excluding the breath-test results and reinstating driving privileges | Exclusion appropriate because maintenance used only one mixture, violating the regulation Rundell relied on | Exclusion was error because the applicable regulation at the time allowed one mixture; Director met foundation requirements | The court reversed the trial court and directed reinstatement of the suspension |
Key Cases Cited
- Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976) (standard of appellate review for trial de novo review of administrative suspensions)
- White v. Director of Revenue, 321 S.W.3d 298 (Mo. banc 2010) (framework for reviewing administrative license-suspension judgments)
- Bartholomew v. Director of Revenue, 462 S.W.3d 465 (Mo. App. E.D. 2015) (application of Murphy standard in license-suspension appeals)
- McGough v. Director of Revenue, 462 S.W.3d 459 (Mo. App. E.D. 2015) (foundation requirements for admissibility of breath-test results)
- Stiers v. Director of Revenue, 477 S.W.3d 611 (Mo. banc 2016) (breath-test validity fixed at the time of calibration; applicable regulation is the one in effect at calibration)
- State v. Regaldo, 806 S.W.2d 86 (Mo. App. W.D. 1991) (state must show literal compliance with DHSS regulations to admit breath-test results)