Philip Lorenzo Gallagher v. Director of Revenue
2016 Mo. App. LEXIS 145
| Mo. Ct. App. | 2016Background
- Philip Gallagher was arrested for DWI after poor field sobriety tests, indicia of intoxication, and an admission he had “drank a lot.”
- Gallagher provided a breath sample on an Alco Sensor IV; the result was .152% BAC (> .08%). His license was administratively suspended and he sought a trial de novo.
- At trial Gallagher objected to admission of the breath test results because the compressed ethanol-gas mixture used to maintain the analyzer was manufactured by Airgas, not an entity listed as an "approved supplier" under DHSS regulation; the maintenance report listed Intoximeters as the "Standard Supplier."
- Intoximeters is expressly listed as an approved supplier in the regulation; Airgas is not. A certificate of analysis showed Airgas manufactured the mixture and sold it to Intoximeters, which then supplied law enforcement.
- The trial court excluded the BAC evidence, reasoning that because Intoximeters did not manufacture the gas it could not qualify as the required "supplier," and reinstated Gallagher's license. The Director appealed.
Issues
| Issue | Gallagher's Argument | Director's Argument | Held |
|---|---|---|---|
| Whether breath-test results were inadmissible because the gas mixture manufacturer (Airgas) was not an approved supplier | The phrase "provided from" requires proof the gas mixture originated with an approved supplier; Airgas was the originator, so evidence fails | Regulation requires only that the entity that provided the gas mixture to law enforcement be an approved supplier; Intoximeters was listed as supplier and is approved | Reversed: Intoximeters, listed as the supplier that provided the gas to law enforcement, satisfies the regulation; exclusion was error |
| Whether the Director must prove every entity in the supply chain is an approved supplier | Argues every link must be approved; otherwise chain origin undermines admissibility | Regulation does not require approval for upstream manufacturers or all intermediaries—only the supplier to law enforcement must be approved | Held: Not required to prove every supplier in chain; only that the provider to law enforcement is approved |
Key Cases Cited
- McGough v. Director of Revenue, 462 S.W.3d 459 (Mo. App. E.D. 2015) (Director must prove probable cause and BAC over limit; foundational requirements for breath test evidence)
- Sheridan v. Director of Revenue, 103 S.W.3d 878 (Mo. App. E.D. 2003) (supplier name on maintenance report can suffice to show approved supplier; exclusion reversible if only missing certificate)
- McDonough v. Director of Revenue, 977 S.W.2d 278 (Mo. App. E.D. 1998) (earlier rule requiring certification by manufacturer of simulator solution)
- Selix v. Director of Revenue, 985 S.W.2d 380 (Mo. App. E.D. 1999) (in some cases it may be reasonable to infer manufacturer is supplier)
- Missouri Title Loans, Inc. v. City of St. Louis Board of Adjustment, 62 S.W.3d 408 (Mo. App. E.D. 2001) (regulatory interpretation follows plain meaning of words)
- State Board of Registration for Healing Arts v. Boston, 72 S.W.3d 260 (Mo. App. W.D. 2002) (presumption that agency word choice is purposeful)