Hurt v. DIRECTOR OF REVENUE, STATEHurt v. DIRECTOR OF REVENUE, STATE
The Director of Revenue (the Director) appeals from a judgment setting aside the administrative suspension of the driving privileges of Jerry Hurt (Hurt) after a trial de novo in circuit court. The Director contends, inter alia, that the trial court erred by finding the results of Hurt’s breathalyzer test invalid due to the presence of chewing tobacco in his mouth throughout the 15-minute observation period preceding the test. Because that contention has no merit and the issue is dis-positive of the entire appeal, the judgment reinstating Hurt’s driving privileges is affirmed.
The Department of Revenue is authorized to suspend the driver’s license of any person “arrested upon probable cause to believe such person was driving a motor vehicle while the alcohol concentration in the person’s blood, breath, or urine was eight-hundredths of one percent or more by weight-” § 302.505.1.
1
After an adverse decision from the Department of Revenue, a driver may file a petition for a trial
de novo
in circuit court. § 302.535.1;
Hlavacek v. Director of Revenue,
In order to make a prima facie case for license suspension, the Director is required to show two elements by a preponderance of the evidence. First, the Director must establish that the person *253 was arrested upon probable cause. Second, the Director must show that the person had a blood alcohol concentration of .080 percent at the time of the arrest. ... The Director has the burden to present a prima facie case. If that threshold is met, the driver is entitled to present evidence in an attempt to rebut the Director’s prima facie case. While the burden of production shifts to the driver when the Director establishes a prima facie case, the burden of persuasion remains with the Director throughout the proceedings.
Id. at 445-46 (citations omitted).
This Court reviews the trial court’s judgment after a trial
de novo
pursuant to the familiar standards established by Rule 84.13(d) and
Murphy v. Carron,
The record reveals that Hurt’s driver’s license was suspended by the Department of Revenue after an administrative hearing in May 2007. Thereafter, Hurt timely filed a request for a trial de novo in circuit court. The trial was held in January 2008.
The Director’s evidence consisted of Exhibit A, which was a certified copy of the Director’s records concerning Hurt, and testimony from Salem city policemen John Chase (Officer Chase) and Randall Brooks (Corporal Brooks). The following is a summary of that evidence.
At 1:12 a.m. on January 3, 2007, Officer Chase was on patrol when he was approached by a BMW with its headlights on high beam. The vehicle was traveling 12 miles over the posted speed limit. Officer Chase turned around and pursued the vehicle. As he approached, he observed the wheels on the BMW’s left side cross over the center yellow line into the oncoming lane of traffic. He activated his emergency lights and stopped the car. Corporal Brooks arrived at the scene shortly thereafter.
Hurt was alone inside the car. When he was asked for his license and insurance card, he handed his entire wallet out the window. After Officer Chase explained that he could not accept the wallet, Hurt was able to produce his driver’s license. His eyes were glassy, and he had a moderate odor of alcohol about his person. He admitted that he had consumed a few drinks at the Eagle’s Club.
Officer Chase administered three field sobriety tests: horizontal gaze nystagmus; the one-leg stand; and the walk-and-turn. Hurt failed all three. He was arrested for driving while intoxicated and transported to the police station by Corporal Brooks. Once there, Officer Chase prepared an alcohol influence report (AIR). Hurt was asked if he was wearing false teeth, and he said no. He agreed to have his blood alcohol tested using a Data Master machine. Officer Chase observed Hurt during the entire 15-minute observation period and testified that “I didn’t observe him *254 having any type of content in his mouth. I mean he didn’t, he didn’t spit anything out, he didn’t have any gum, chewing tobacco, smoking or anything like that.” Officer Chase chewed tobacco himself, and he could “most normally” tell when someone was chewing tobacco. However, he admitted that he did not ask Hurt whether he had anything in his mouth during the observation period.
Corporal Brooks also was present during the 15-minute observation period. He had seen people chewing tobacco and “sometimes” could tell if they were doing so. He did not see Hurt place anything into his mouth or see anything come out of his mouth during that time frame. However, Corporal Brooks did not ask Hurt whether he had anything in his mouth. Corporal Brooks administered the blood alcohol test, which showed that Hurt had a blood alcohol content of .121%.
To rebut the Director’s case, Hurt presented testimony from himself and Dent County Deputy Sheriff Matt Pappert (Deputy Pappert). Their testimony is summarized below.
Hurt testified that he had been at the Eagles Club for a couple of hours before the traffic stop. While there, he had consumed two or three drinks. He left between 12:30 and 1:00 a.m. He had chewed tobacco since he was 19 years old. As soon as he left the club, he placed some chewing tobacco in his mouth. The Eagles Club was only two miles out of Salem, so Hurt was stopped within three to five minutes after he left. Neither Officer Chase nor Corporal Brooks: (1) asked Hurt whether he had anything in his mouth; (2) checked to see whether he had anything in his mouth; or (3) asked him to remove anything from his mouth. The chewing tobacco was still in his mouth when he took the blood alcohol test. Hurt had chewing tobacco in his mouth while he was testifying at the trial de novo. He also removed a can of tobacco from his pants pocket and demonstrated how much tobacco he would typically place in his mouth between his cheek and gum.
Deputy Pappert testified that he was with Hurt at the Eagles Club until he left in the early morning hours of January 3. The pair had been sitting together at the same table for several hours. During that time, Hurt had two or three drinks. As a road officer, Deputy Pappert had stopped people for driving while intoxicated, and he knew how to administer field sobriety tests. Based on the deputy’s observations of Hurt’s speech and actions throughout the evening, he did not seem to be impaired or unsafe to operate a vehicle when he got ready to leave. If he had been, Deputy Pappert would have offered Hurt a ride home or a place to stay. Deputy Pappert also confirmed that Hurt generally put tobacco in his mouth on his way out the door of the Eagles Club.
The trial court entered a judgment reinstating Hurt’s driving privileges. The court found the breathalyzer test results unreliable because neither Officer Chase nor Corporal Brooks noticed that Hurt had chewing tobacco in his mouth, and this substance remained there throughout the 15-minute observation period.
3
The court cited
Coyle v. Director of Revenue,
Point IV
To establish a
prima facie
case for suspension of Hurt’s driving privileges for
*255
driving while intoxicated, the Director had to present evidence showing that: (1) there was probable cause for the arrest; and (2) Hurt’s blood alcohol level exceeded the legal limit.
Vanderpool v. Director of Revenue,
The Director’s fourth point asserts this ruling was erroneous because Hurt failed to properly rebut the presumption that his blood alcohol test results were valid. According to the Director, Hurt’s evidence was insufficient because: (1) he already had the tobacco in his mouth before the observation period began; and (2) he presented no independent evidence that the presence of tobacco affected the validity of the blood alcohol test. For the following reasons, that argument lacks merit.
The Missouri Department of Health (MDOH) has adopted regulations controlling the administration of blood alcohol tests. “Breath analyzers shall be operated strictly in accordance with the procedures set forth in 19 CSR 25-30.060.” 19 CSR 25-30.011(5) (2001). Hurt’s blood alcohol level was measured using a Data Master breath analyzer. When this type of machine is used, the procedures set out in Form # 7 must be followed. 19 CSR 25-30.060(3). 4 The first item on the Data Master operational checklist states: “1. Subject observed for at least 15 minutes by_No smoking or oral intake of any material during this time; if vomiting occurs, start over with the 15 minute observation period.” 19 CSR 25-30.060 (Form # 7) (2001).
The MDOH regulations contain no definition of what constitutes the prohibited “oral intake of any material during this time.... ” One purpose of the regulation, however, is to prohibit oral intake which can taint the blood alcohol test results.
Walker v. Director of Revenue,
Drinking and driving experts are resolute that this fifteen minute waiting period plays a critical role to insure that the breathalyzer test achieves an accurate result. See 3 DONALD H. NICHOLS & FLEM K. WHITED III, DRINKING/DRIVING LITIGATION CRIMINAL AND CIVIL § 19:9 (2d ed. 1998) (“The arresting officer or Breathalyzer operator must continuously observe the subject during the fifteen to twenty minutes prior to the test. This waiting peri *256 od is necessary to reduce interference from alcohol or other substance that may have been present in the mouth ... The presence of such compounds in the mouth at the time of breath collection will produce an extremely high breath alcohol value that is far from indicative of alveolar breath alcohol concentration.”); 4 DAVID L. FAIGMAN ET AL., MODERN SCIENTIFIC EVIDENCE, § 33-2.3.2(c) (2002) (“Some foreign objects in the mouth, such as chewing tobacco, may trap alcohol and affect the breath test ... If the above are ruled out by observation, and the 15 minute waiting period is observed and documented, any interference with a valid test should not have occurred.”); HARVEY M. COHEN & JOSEPH B. GREEN, APPREHENDING AND PROSECUTING THE DRUNK DRIVER § 7.04(ll)(e) (2002) (“The defendant should be observed for 15 to 20 minutes prior to blowing into the breath-alcohol analyzer to ensure that he or she ingests nothing and brings nothing up from the stomach (by burp, belch, regurgitation, etc.), since these can affect the accuracy of the test.”).
Id. at 129.
Here, the trial court believed that Hurt had chewing tobacco in his mouth throughout the 15-minute observation period. In
Duing v. Director of Revenue,
In
Middlemas v. Director of Revenue,
The decisions in
Duing
and
Mid-dlemas
were based on the premise that, even if a driver proved there was prohibited oral intake during the 15-minute observation period, it was still the driver’s obligation to prove how this violation of the regulation affected the validity of the blood alcohol test results. On this specific point,
*257
both of these decisions were effectively overruled by
Coyle v. Director of Revenue,
Evidence, if believed by the court, that one of these events occurred during the 15 minutes prior to the test is sufficient to rebut the director’s prima facie case without presentation of any additional evidence as to the specific effect of smoking, vomiting, or other oral intake of material on the blood alcohol results.
Id.
In the case at bar, the trial court found Hurt’s blood alcohol test results were invalid because he had tobacco in his mouth when the test was conducted. Based upon Coyle, the trial court could rely upon the presumption of invalidity created by credible evidence of prohibited oral intake during the 15-minute observation period. Id. at 65. Hurt was under no obligation to adduce any additional evidence in order to rebut the Director’s prima facie case.
The Director argues that 19 CSR 25-30.060 only applies if the driver first places something in his or her mouth during the 15-minute observation period, but the analysis in prior cases belies that assertion. For example, in
State v. Pike,
[T]he record favorable to the trial court’s judgment would indicate that the respondent was stopped at 1:36 a.m., arrested at 1:46 a.m., asked for her consent to submit to a breathalyzer test at 1:58 a.m., and given the breathalyzer test at 2:17 a.m. At best, when viewed in a light most favorable to the respondent, the evidence would support the fact that sometime between 1:46 and 1:58 a.m. the respondent placed a peppermint in her mouth and that it was still there at 1:58 a.m., when Officer Bonner asked her whether she would consent to taking a breathalyzer test. However, without engaging in pure speculation, there is no way to determine whether the mint was still in her mouth during the observation period, 2:02 a.m. to 2:17 a.m. The respondent did not testify that the mint was still in her mouth during this time nor did she testify as to basic underlying facts which would have allowed the trial court to reasonably infer that it was still there, such as how big the mint was or the average time it took her to finish one. Thus, in concluding that the Director’s prima facie case for suspension under § 302.505.1 had been rebutted by the fact that the respondent had a peppermint in her mouth during the observation period, the trial court clearly had to resort to an inference that was unrea *258 sonable in that it relied on speculation, which it could not do.
Id. at 488. Accepting the Director’s argument would lead to at least two anomalous conclusions. First, an officer who observed a driver place something in his mouth during the observation period would be required to have the object removed and restart the time period. No similar action would be required of an officer who simply observed a driver with something in his mouth when the observation period started. 6 Second, a driver who presented credible proof that he placed chewing tobacco in his mouth during the observation period could rebut the Director’s prima facie case by simply relying on the presumption of invalidity articulated in Coyle. In contrast, a driver who presented credible proof that he had chewing tobacco in his mouth throughout the observation period would be deprived of that presumption’s benefit and would be required to present additional evidence about the specific effect of tobacco on the blood test results. Treating these two situations the same way would promote the regulation’s purpose of preventing a driver from having something in his mouth at the time of the blood alcohol test that could taint the results. Point IV is denied.
The remainder of the Director’s points require only brief discussion. In Point I, the Director contends that the trial court erred in sustaining Hurt’s hearsay and foundational objections to Exhibit A. After reviewing the record, this Court cannot locate any such ruling. At the beginning of the trial, Exhibit A was offered in evidence. Hurt’s counsel made a general objection on the grounds of hearsay and foundation. Exhibit A was admitted “subject to” those objections, and the records in Exhibit A were thoroughly discussed by the witnesses during their testimony. There is nothing in the record or the Director’s brief that persuades us the trial court actually refused to consider any portion of Exhibit A. Point denied. Points II and III deal with the trial court’s ruling on probable cause. The issues raised are moot in light of this Court’s disposition of Point IV.
The judgment of the trial court is affirmed.
Notes
. All references to statutes are to RSMo Cum. Supp. (2008).
. All references to rules are to the Missouri Court Rules (2008). Murphy interpreted the provisions of former Rule 73.01(c). The provisions of that rule were transferred, in essentially the same form, to Rule 84.13(d) effective January 1, 2000.
. The judge made a specific factual finding that “[Hurt] had chewing tobacco in his mouth while testifying which was not readily perceptible.”
. All references to state regulations are to the Code of State Regulations (2004) unless otherwise specified.
. One judge dissented from this holding.
. In that regard, this Court’s recent decision in
Smith v. Director of Revenue,