Case Information
*1 In the Missouri Court of Appeals Eastern District DIVISION ONE
JORDAN RUNDELL, ) ED103112
)
Respondent, ) Appeal from the Circuit Court ) of the City of St. Louis vs. )
) Honorable Theresa Counts Burke DIRECTOR OF REVENUE, )
)
Appellant. ) FILED: April 19, 2016
The Director of Revenue of the State of Missouri ("Director") appeals from the trial court's judgment, following a trial de novo , ordering Director to remove the administrative- alcohol suspension from Jordan Rundell's ("Driver's") driving record and to reinstate Driver's driving privileges. We reverse and remand.
I. Background Driver was arrested upon probable cause to believe he was driving while intoxicated on May 2, 2014. Driver consented to submit a breath test on an Intox EC/IR II breath analyzer machine, and the results showed his BAC was .189 percent, more than double the legal limit of .08 percent. Following an administrative hearing, Director notified Driver that she was suspending his driving privileges. As a result, Driver filed a petition for trial de novo .
Prior to the hearing, Driver filed a memorandum where he argued the results of the breath test should not be admissible as the language of 19 CSR 25-30.051(5) in effect at the time the *2 maintenance report was conducted required the use of all three compressed ethanol-gas solutions, and that the maintenance report in his case did not comply with these regulations since the breath analyzer was only verified at one level, 0.08 percent. At the hearing, Director sought to admit Exhibit A, certified copies of records relating to Driver's case. These records included the results of the blood alcohol test administered on May 2, 2014, and the maintenance report used to conduct the test. The maintenance report reflected that Officer Scott Christian, the officer who performed the maintenance check, marked boxes to indicate that a 0.08 percent standard compressed ethanol-gas mixture was used for the calibration check. The report showed that the breath analyzer had been inspected on May 1, 2014. Driver objected to the admission of Exhibit A based on the grounds set forth in his previously filed memorandum.
The court sustained Driver's objection to the foundation of the breath test results [1] and made a specific finding that "and" has relevance in the regulation. Thus, the trial court found the results of the breath test inadmissible, and ultimately ordered Director to remove the administrative alcohol suspension from Driver's driving record and to reinstate Driver's driving privileges.
Director filed a Motion for New Trial/To Set Aside Judgment and noted that the sole objection made by Driver in his memorandum was that the version of 19 CSR 25-30.051 in effect at the time of his arrest required the use of three compressed ethanol-gas mixtures during a maintenance check, and that only one was utilized. Director alleged that Driver quoted the version of the regulation that was in effect between December 31, 2012, and February 28, 2014, stating it was applicable. However, Director argued that the regulation had been amended on *3 February 28, 2014, and required only one of the available mixtures need be used during a maintenance check. The motion noted that the amended regulation was in effect on May 1, 2014, when the maintenance check was performed and thus, the maintenance of the breath analyzer was in compliance with the regulation in effect on that date. The record does not reflect a ruling on Director's motion. This appeal followed.
II. Discussion In her sole point on appeal, Director argues the trial court erred in excluding the results of the breath test and in reinstating Driver's driving privileges because the court erroneously declared and applied the law by finding that the word "and" in 19 CSR 25-30.051(5) required that the breath analyzer used to obtain Driver's breath sample be calibrated using three different compressed ethanol-gas mixtures. Director claims that this version of the regulation had been repealed prior to the date the maintenance check was performed on the breath analyzer and the version of the regulation in effect on that date had replaced the word "and" with the word "or," evidencing an intent that only one compressed ethanol-gas mixture value be used in the maintenance check and calibration. Director asserts that the breath analyzer was thus calibrated in accordance with the regulation then in effect and that sufficient foundation had been laid for admission of the breath test results.
Standard of Review
We review the trial court's judgment "reinstating driving privileges following an
administrative suspension or revocation under the standard of Murphy v. Carron,
"The nature of our review is directed by whether the particular issue is a question of fact
or law." Cortner v. Dir. of Revenue,
Analysis
The Director has the burden to establish by a preponderance of the evidence a
prima facie
case for suspension of a driver’s license by introducing evidence that there was probable cause
for arresting the driver for an alcohol-related offense and that the driver’s BAC exceeded the
legal limit of .08 percent. McGough,
Director alleges Driver's argument that the breath results should be excluded, due to lack of foundation, relied on language in the version of 19 CSR 25-30.051(5) that was in effect from December 30, 2012, to February 27, 2014. Director demonstrates that the regulation read, in pertinent part as follows:
(1) Standards used for the purpose of verifying and calibrating breath analyzers shall consist of standard simulator solutions or compressed ethanol-gas standard mixtures.
[. . .] (5) Compressed ethanol-gas mixtures used to verify and calibrate evidential breath analyzers [. . .] shall have a concentration within five percent (5%) of the following values:
(A) 0.10%;
(B) 0.08%; and
(C) 0.04%. 19 CSR 25-30.051 (effective Dec. 30, 2012). In court, Driver argued that the inclusion of the word "and" in subsection five mandated that all three values of compressed ethanol-gas mixtures be used to calibrate and verify a breath analyzer. The trial court accepted this argument and excluded the breath test results on the basis that "and" has relevance in the regulation. Director claims that the version of the 19 CSR 25.30.051(5) in place on the date the maintenance check was performed on the breath analyzer had replaced the word "and" with the word "or," evidencing an intent that only one compressed ethanol-gas mixture value be used in the maintenance check and calibration. We agree.
"Where the Department of Health has enacted regulations concerning the proper
methods of conducting blood alcohol tests … the state must demonstrate absolute and literal
compliance with these regulations prerequisite to introducing the test results into evidence."
State v. Regaldo,
Regulation 19 CSR 25-30.051, as promulgated by DHSS at the time of Driver's breath test provided that:
(1) Standards used for the purpose of verifying and calibrating breath analyzers shall consist of standard simulator solutions or compressed ethanol-gas standard mixtures.
[. . .] (5) Compressed ethanol-gas mixtures used to verify and calibrate evidential breath analyzers [. . .] shall have a concentration within five percent (5%) of the following values:
(A) 0.10%;
(B) 0.08%; or
(C) 0.04%.
19 CSR 25-30.051 (effective Feb 28, 2014).
When interpreting a statute, the primary goal is to give effect to the legislative intent as
reflected in the plain language of the statute. Stiers,
DHSS's choice of wording is not meaningless. See State Bd. of Registration for Healing Arts v.
Boston,
The primary rule of construction is to ascertain the agency’s intent from the language
used and give effect to that intent, while considering the words used in their plain and ordinary
meaning. See Tuft v. City of St. Louis,
The evolution of this regulation also demonstrates that the use of all three compressed-
ethanol-gas values to verify and calibrate the breath analyzer is no longer required for the
purposes of laying foundation for the admission of a breath test. A change to a regulation is
presumed to have some effect. See S.S. v. Mitchell,
This intent is further reflected in the statement of purpose that accompanied the proposed amendment when it was published in 2013: "this amendment clarifies which standard simulator solutions of the listed concentrations may be used in verifying and calibrating breath analyzers." 38 Mo. Register 1625 (Oct. 15, 2013) (emphasis added). Therefore, the change indicates that in order to lay the foundation for admissibility of a breath test, the Director need only provide proof *8 that the breath analyzer was verified and calibrated using one of three approved compressed ethanol-gas mixtures.
The maintenance report clearly identified the 0.08 percent standard as the compressed ethanol-gas mixture value used to calibrate and verify the breath analyzer used to analyze Driver's BAC at the time of his arrest. The use of a compressed ethanol-gas mixture with a concentration at 0.08 percent is an approved value under 19 CSR 25-30.051(5), and thus proper foundation was laid for the admission of Driver's breath test results. Director's point on appeal is sustained.
Conclusion
The judgment of the trial court is reversed and we remand the cause with instruction to the trial court to enter a judgment affirming the Director's revocation of Driver's driving privileges.
___________________________________ ROY L. RICHTER, Judge Robert G. Dowd, Jr., P.J., concurs.
Mary K. Hoff, J., concurs.
Notes
[1] The trial court made its ruling pursuant to 19 CSR 25-30.051(2); however, subsection five is the appropriate application of law as the maintenance report indicates a compressed ethanol-gas mixture was used for calibration, not a standard simulator solution. Although the trial court cites to the wrong subsection in its ruling, the outcome of this appeal is not affected as the language of the two subsections is nearly identical aside from the specified solution used for verification and calibration.