Marquart v. Dir. of Revenue
549 S.W.3d 56
| Mo. Ct. App. | 2018Background
- On Feb. 21, 2015 Deputy Adam Albert stopped and arrested Everet Marquart for DWI after observing driving irregularities and signs of intoxication; Marquart admitted drinking and refused a preliminary breath test.
- Deputy Albert conducted a 15-minute observation and then another deputy brought an Alco-Sensor IV with printer unit (AS-IV-P) to the patrol car; the in-car breath test measured BAC 0.119%.
- The Director suspended Marquart’s license; an administrative hearing sustained the suspension and Marquart sought de novo review in circuit court.
- At trial Marquart objected to admission of the AS-IV-P result, arguing the Director failed to show compliance with regulations governing breath analyzer use and maintenance (19 CSR 25-30.050 and 19 CSR 25-30.031).
- The trial court found probable cause and BAC above 0.08 and sustained the suspension; Marquart appealed.
Issues
| Issue | Plaintiff's Argument (Marquart) | Defendant's Argument (Director) | Held |
|---|---|---|---|
| Whether use of AS-IV-P in a routine patrol car violated 19 CSR 25-30.050(2) | Patrol car is not a "vehicle used for driving-while-intoxicated enforcement"; moving/using unit in patrol car was impermissible mobile use | Regulation permits use inside buildings or vehicles used for DWI enforcement; patrol cars are used for DWI enforcement so in-car use is allowed | Court: regulation’s plain language includes any vehicle used for DWI enforcement; in-car use was permissible (Point I denied) |
| Whether movement of unit between vehicles triggered maintenance/"new instrument" checks under 19 CSR 25-30.031 | Transfer between patrol cars made the unit a "new instrument" in service, requiring maintenance/calibration before use | No timely objection on this specific ground at trial; thus argument waived; also transfer likely not a "new instrument" placement | Court: objection not timely/specific so waived; Point II denied |
Key Cases Cited
- Bartholomew v. Dir. of Revenue, 462 S.W.3d 465 (Mo. App. E.D.) (Director must prove probable cause and BAC > 0.08 by preponderance)
- Irwin v. Dir. of Revenue, 365 S.W.3d 266 (Mo. App. E.D.) (foundation elements for admission of breath-analyzer results)
- Bouillon v. Dir. of Revenue, 306 S.W.3d 197 (Mo. App. E.D.) (appellate standard for court-tried cases)
- Gallagher v. Dir. of Revenue, 487 S.W.3d 24 (Mo. App. E.D.) (interpretation of administrative regulations; plain-meaning approach)
- Krieger v. Dir. of Revenue, 14 S.W.3d 697 (Mo. App. E.D.) (timeliness and specificity required for evidentiary objections)
- Sellenriek v. Dir. of Revenue, 826 S.W.2d 338 (Mo. banc) (foundational prerequisites unnecessary where test results admitted without timely objection)