O'Rourke v. Director of Revenue
2013 Mo. App. LEXIS 769
| Mo. Ct. App. | 2013Background
- Director appeals circuit-court reinstatement of O’Rourke’s driving privileges after DWI-related suspension; administratively sustained at hearing; trial de novo held June 18, 2012; Director offered Exhibit A (breath test and maintenance report) and Exhibit B (amended maintenance) which were admitted over objection; O’Rourke claimed the amended maintenance and breath test were noncompliant with DHSS rules; trial court found BAC below .08 and that mouthpiece change/second 15-minute observation were not performed, ordering reinstatement.
- Breath test result showed a BAC of .172; O’Rourke testified he blew three times within ten minutes with no mouthpiece change or additional observation period; Director relied on records without calling Officer Rodman.
- Trial court admitted the breath test but found Director’s evidence not credible in light of O’Rourke’s testimony; judgment reinstated O’Rourke’s driving privileges.
- Director argued DHSS rules do not require mouthpiece changes or additional observation between blows and that substantial evidence supports reinstatement; court addressed burden of proof and admissibility of breath test evidence.
- On appeal, court affirmed, clarifying burden of proof under White v. Dir. of Revenue and interpreting DHSS regulations on 15-minute observation and mouthpiece requirements.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether DHSS rules require a mouthpiece change between breaths and a second 15-minute observation | Director: no mouthpiece change or extra observation needed | O’Rourke: not required by DHSS; breath test admissible with one 15-minute observation | No; one 15-minute observation suffices and mouthpiece changes are not mandated between breaths |
| Whether the trial court properly applied White v. Dir. of Revenue burden of proof | Director: established prima facie and no rebuttal burden shift | O’Rourke: driver bears burden to rebut Director’s evidence after admissibility | Burden has two components; no shift to O’Rourke; court properly evaluated credibility and sufficiency |
| Whether the trial court’s reinstatement of privileges was against the weight or not supported by substantial evidence | Director: testimony undermines Director’s evidence; should not reinstate | O’Rourke: evidence shows BAC not proven beyond doubt or properly admitted | Supported by substantial evidence; not against weight of the evidence |
Key Cases Cited
- White v. Dir. of Revenue, 321 S.W.3d 298 (Mo. banc 2010) (burden of proof has two components; no presumption shifting to driver)
- Hill v. Dir. of Revenue State of Mo., 985 S.W.2d 824 (Mo.App. W.D.1998) (one 15-minute observation suffices; second is not required)
- Carr v. Dir. of Revenue, 95 S.W.3d 121 (Mo.App. W.D.2002) (second observation between tests unnecessary; mouthpiece not required to change between tests)
- Collins v. Dir. of Revenue, 399 S.W.3d 95 (Mo.App. W.D.2013) (Section 577.037 does not create a presumption of breath-test validity; may prove intoxicated condition otherwise)
- Walker v. Dir. of Revenue, 137 S.W.3d 444 (Mo. banc 2004) (credibility determinations are for trial court; court defers on appellate review)