MATTHEW CARVALHO, Appellant, vs. DIRECTOR OF REVENUE, Respondent.
No. SC97394
SUPREME COURT OF MISSOURI en banc
March 19, 2019
modified on the Court‘s own motion April 30, 2019
Appeal from the Circuit Court of Franklin County, Honorable Stanley Williams,
Matthew Carvalho appeals the suspension of his driver’s license for driving while intoxicated. He argues the circuit court erred in admitting the report showing his blood alcohol content (BAC) was .087 percent, over the legal limit, because the director of revenue did not present evidence showing the report was timely filed with the department of health and senior services (DHSS). He also alleges the implied consent notice failed to comply with due process because it misled him in stating his license would be suspended immediately if he refused the breath test and in failing to tell him the consequences of taking the breath test. Finally, he alleges a later notice of suspension given him after he failed the breath test did not adequately
This Court affirms. The filing of the report with DHSS is a collateral requirement that does not affect the performance of the test or its validity or accuracy, and, so, a failure to timely make that filing does not preclude admission of the report. Further, the implied consent notice was accurate in telling Mr. Carvalho his license would be suspended immediately should he refuse the breath test. The fact he would then be given a 15-day permit did not change that fact. Nothing in Missouri law or in the due process clause required the officer to tell Mr. Carvalho the consequences of taking the breath test, to which he had already had consented by driving on Missouri’s roads. It was only as to the consequences of withdrawing that consent that he required notice. Finally, the notice of suspension accurately told Mr. Carvalho the facts required by statute to suspend his license and how to request a hearing. Due process did not require the officer to explain the law regarding the burden of proof the director would bear at that hearing.
I. FACTUAL AND PROCEDURAL BACKGROUND
An officer from the Washington, Missouri, police department stopped Mr. Carvalho on May 10, 2017, for speeding. Mr. Carvalho had crutches in the car and stated he had been at a hospital due to a foot injury. The officer’s report states he suspected Mr. Carvalho was driving while intoxicated based on his “very strong odor of intoxicants” and “watery, bloodshot, and glassy” eyes. Mr. Carvalho said he had not been drinking but declined to allow the officer to perform a horizontal eye nystagmus test, stating, “I ain’t doing that, you can talk to my lawyer.” In the incident report, the officer noted Mr. Carvalho slurred his words when he spoke. The officer asked Mr. Carvalho to exit the vehicle, which he did with the assistance of his crutches. The officer asked Mr. Carvalho to provide a sample of his breath and advised him of Missouri’s implied consent law. When Mr. Carvalho refused, the officer arrested him for speeding and driving while intoxicated and transported him to the Washington police station.
At the police station, the officer asked Mr. Carvalho to provide a breath sample and read him what is commonly referred to as “the implied consent warning” contained in the Missouri department of revenue alcohol influence report:
You are under arrest. I had reasonable grounds to believe you were driving a motor vehicle while in an intoxicated or drugged condition. To determine the alcohol or drug content in your blood, I’m requesting you to submit to a chemical test of your breath. If you refuse to take the test, your driver’s license will immediately be revoked for one year. Evidence of your refusal to take the test may be used against you in prosecution in a court of law. Having been informed of the reasons for requesting the test, will you take the test?
Mr. Carvalho asked to speak with an attorney. After doing so, Mr. Carvalho agreed to take the breath test. It showed Mr. Carvalho had a BAC of .087 percent. When a breath test shows a BAC above .08 percent, the officer:
2. ... shall take possession of any driver’s license issued by this state which is held by the person [and] ... shall issue a temporary permit which is valid for fifteen days after its date of issuance and shall also give the person arrested a notice which shall inform the person of all rights and responsibilities pursuant to sections 302.500 to 302.540. ... The notice shall also contain a detachable
form permitting the arrested person to request a hearing.
As required by this statute, the officer took possession of Mr. Carvalho’s license and provided him with a 15-day temporary permit with notice that his “driving privilege will be suspended or revoked 15 days from the date of this notice if you do not request a hearing” and with a form explaining how to request a hearing. As required by
Based on the officer’s report, the department determined Mr. Carvalho was arrested upon probable cause to believe he was driving a motor vehicle with a BAC above .08, and suspended his license.2
Mr. Carvalho objected to the admission of the portion of exhibit A containing his .087 BAC test results because he alleged admission would violate Missouri regulations and his due process rights:
Your Honor, my only objection to Exhibit A would be any introduction of the alleged BAC result as they are found in that exhibit. Specifically, my objection would be that my client -- there was no probable cause for the arrest. My client’s due process rights were violated in obtaining the breath result, and also the foundational requirements in 19 CSR 25-30.0313 were not satisfied.
Consistent with what he told the officer at the scene, Mr. Carvalho testified in his defense that he did not drink at all on the day of his arrest and had recently left the hospital after injuring his foot just prior to the time he was pulled over. Although he spoke with a lawyer after receiving the warning, he said he took the breath test based on use of the word “immediately” in the warning because he thought this meant if he did not take the test he would be prohibited from driving for the remainder of the year to work and to school and was concerned he would lose his job. He testified he did not realize he would get a temporary permit.
II. STANDARD OF REVIEW
In this court-tried case involving a license revocation, “the trial court’s judgment will be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law.” White v. Dir. of Revenue, 321 S.W.3d 298, 307-08 (Mo. banc 2010). “When facts are not contested and the issue is one of law our review is de novo, and no deference is given to the trial court’s determination.” Stiers v. Director of Revenue, 477 S.W.3d 611, 614 (Mo. banc 2016) (Quotation omitted). The Court reviews the constitutional validity of a statute de novo. Hink v. Helfrich, 545 S.W.3d 335, 338 (Mo. banc 2018).
III. STATUTORY AND REGULATORY FOUNDATIONAL REQUIREMENTS WERE MET FOR ADMISSION OF THE BREATH TEST RESULTS
Mr. Carvalho contends the breath test results were inadmissible because the director failed to demonstrate compliance with 19 CSR § 25-30.031(3), which provides that a copy of maintenance reports on breathalyzers must be filed with DHSS within 15 days. In considering this argument, it is helpful to review what must be shown to revoke or suspend a person’s license for an excessive BAC.
The department of revenue is required to suspend or revoke an adult driver’s license “upon its determination that the person was arrested upon probable cause to believe he was driving a motor vehicle while the alcohol concentration in the person’s blood or breath was eight-hundredths of one percent or more by weight of alcohol in his blood....”
4. The state department of health and senior services shall approve satisfactory techniques, devices, equipment, or methods to be used in the chemical test pursuant to the provisions of sections 577.019 to 577.041. The department shall also establish standards to ascertain the qualifications and competence of individuals to conduct such analyses and issue permits which shall be subject to termination or revocation by the state department of health and senior services.
But here, Mr. Carvalho does not dispute that the director adduced evidence of all three foundational requirements to show the test was performed in compliance with DHSS regulations. The officer conducted the test on equipment approved by DHSS, and no party disputes a maintenance check had been conducted within 35 days on that machine. The officer held a valid permit from DHSS to use that equipment and conducted the test according to the procedures and techniques prescribed by DHSS.
Mr. Carvalho nonetheless argues the breath test should have been excluded because the director failed to prove compliance with another section of the regulations providing, “The permittee shall retain the original report of the maintenance check and submit a copy of the report so that it shall be received by [DHSS] within fifteen (15) days from the date the maintenance check was performed.” 19 CSR § 25-30.031(3). Mr. Carvalho contends the director failed to present evidence the maintenance-check report for the breath analyzer had been submitted to DHSS within 15 days following the last maintenance check conducted on the machine.
Mr. Carvalho’s complaint is with a record-keeping regulation requiring a copy of maintenance reports be submitted to DHS within a 15-day period after the test was conducted. He does not claim this failure affected the validity, performance, or accuracy of the test. He simply says it is, in effect, a foundational box the department did not check and, so, makes the test inadmissible.
But neither the relevant statutes nor the cited regulations make admissibility of the breath test result dependent on whether collateral record-keeping requirements were met. As noted earlier,
Indeed, although this is this Court’s first opportunity to address this issue, Mr. Carvalho’s argument has been rejected repeatedly by the court of appeals. Turcotte v. State, 829 S.W.2d 494, 496 (Mo. App. 1992), held a breath test was admissible although the maintenance report was not sent to DHSS at all because the “failure to file timely maintenance reports does not impeach the machine’s accuracy, which is the main concern here.” Both Hearne v. v. Director of Revenue, 559 S.W.3d 66, 69 (Mo. App. 2018), and Roam v. Director of Revenue, 559 S.W.3d 1, 4 (Mo. App. 2018), found the failure to file the maintenance report within 15 days should not have rendered the drivers’ tests inadmissible as that failure did not impeach the tests’ accuracy, citing Turcotte. Accord Potts v. State, 22 S.W.3d 226, 230 (Mo. App. 2000) (breath test admissible when the permittee accidentally kept the copy of the maintenance check and sent the original to
By contrast, when regulatory matters affect the actual performance of maintenance tests of breathalyzers, strict compliance is required. Woodall v. Director of Revenue, 795 S.W.2d 420, 420 (Mo. App. 1990), held the statutory foundation for the admission of a BAC test was not satisfied because the State admitted that no maintenance check took place within 35 days prior to the test, as this could have affected the validity of the test result. See also Sellenriek v. Director of Revenue, 826 S.W.2d 338, 340 (Mo. banc 1992) (finding evidence of compliance with 19 CSR § 25-30.031’s requirement of regular maintenance checks is required because it bears directly on “proper functioning and operation of the machine when a blood alcohol analysis is conducted” and is intended “to ensure the reliability of a particular test result.“).3
This holding does not undercut the importance of the recordkeeping requirements set out in the regulations issued under chapter 302. It simply recognizes the purpose of the regulation at issue is aimed at the internal recordkeeping needs of DHSS and allows DHSS to verify compliance among permittees. There may well be cases in which, for instance, the identity of a test result is at issue and compliance with this regulatory requirement can assist the court or administrative body in determining whether the proper test result is being considered. Further, records properly deposited with DHSS are admissible in courts and in administrative proceedings if certified by a proper custodian just as are records filed with the department of revenue, an obvious regulatory advantage.
IV. MR. CARVALHO’S PROCEDURAL DUE PROCESS RIGHTS WERE NOT VIOLATED
“Procedural due process imposes constraints on governmental decisions which deprive individuals of ‘liberty’ or ‘property’ interests within the meaning of the Due Process Clause of the Fifth or Fourteenth Amendment.” Mathews v. Eldridge, 424 U.S. 319, 332 (1976). Driver’s licenses are property interests protected by procedural due process and “are not to be taken away without that procedural due process required by the Fourteenth Amendment.” Dixon v. Love, 431 U.S. 105, 112 (1977) (Quotations omitted). Mr. Carvalho does not make a due process challenge to the initial suspension of his license or deny he received a meaningful hearing. Instead, Mr. Carvalho argues he was provided constitutionally deficient notice of that hearing. Procedural due process permits deprivation of a property interest by the government only upon notice and an opportunity for a hearing. Moore v. Board of Educ., 836 S.W.2d 943, 948 (Mo. banc 1992). This does not require the same type of process in every instance; rather, “due process is flexible and calls for such procedural protections as the particular situation demands.” Jamison v. State Department of Social Services, 218 S.W.3d 399, 406 (Mo. banc 2007), quoting, Morrissey v. Brewer, 408 U.S. 471, 481 (1972). Due process requires “notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Stough v. Bregg, 506 S.W.3d 400, 404 (Mo. App. 2016), quoting, Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950).
Mr. Carvalho challenges the sufficiency of two notices. First, he argues the implied consent warning given him by the officer when he was first stopped failed to meet the standard this Court set out in Teson v. Director of Revenue, 937 S.W.2d 195, 197 (Mo. banc 1996). Teson held an implied consent warning fails to satisfy due process if the words used “either (1) fail to inform the arrestee of all of the consequences of refusal or (2) mislead the arrestee into believing that the consequences of refusal are different than the law actually provides.” Id. at 197.
Mr. Carvalho concedes the officer read him the notice required by
Contrary to Mr. Carvalho’s argument,
Teson is not
This Court reaffirms the result in Teson. The officer takes physical possession of the driver’s license, and the driver is given a permit good for only 15 days.
Mr. Carvalho alternatively argues, even if the implied consent warning adequately told him the consequences of refusing the breath test, it did not tell him the consequences of consenting to the breath test – that his license could be suspended if the test shows a BAC exceeding .08 percent. He says by warning him of the immediate loss of his license if he refuses the test but not warning him of the consequences of taking the test, the warning “implies that providing a sample is a consequence-free act.” Before being asked to take the breath test in Missouri, every driver is told the reason for the test, to wit, the officer “had reasonable grounds to believe you were driving a motor vehicle while in an intoxicated or drugged condition. To determine the alcohol or drug content in your blood, I’m requesting you to submit to a chemical test of your breath.” This language notifies every driver, including Mr. Carvalho, the purpose of the testing is to confirm or negate the officer’s belief the driver is intoxicated. Mr. Carvalho also was given Miranda warnings after his arrest which informed him he may speak with an attorney, and he did so before deciding whether to take the test. “It strains credulity to suggest that a person arrested for [drunken driving] will not know that if he submits to a chemical test the results may be used against him at trial.” State v. Knous, 313 N.W.2d 510, 512 (Iowa 1981). While the record does not reveal why Mr. Carvalho chose to take the test, nothing in the record supports any cause for confusion as to the consequence of testing above the legal limit.
Even more basically, however, Mr. Carvalho’s argument ignores that the purpose of the implied consent warning is not to obtain a driver’s consent to a breath test. A driver already gave that consent as soon as he took the wheel in Missouri, for
Mr. Carvalho finally argues he was misled by the written notice the officer gave him after he took but failed the breath test. The notice was entitled “Notice of Suspension or Revocation of Your Driving Privilege” and stated:
You have been stopped and/or arrested upon probable cause that you were driving a vehicle while your blood alcohol level was over the legal limit. Your driving privilege will be suspended or revoked 15 days from the date of this notice if you do not request a hearing.
Mr. Carvalho notes
Mr. Carvalho misapprehends the purpose of the notice. It accurately told him that if he did not request a hearing, his license would be suspended or revoked in 15 days. It did not purport to also tell him what the director would be required to prove if Mr. Carvalho did request a hearing, and he cites no authority requiring it to do so. Other parts of the notice notified Mr. Carvalho how to request an in-person hearing and contained instructions for contacting the department of revenue.
This was adequate. While a notice cannot mislead, parties are “held to a knowledge of the law.” See Bishop v. Board of Ed. of Francis Howell Sch. Dist., St. Charles, 575 S.W.2d 827, 829 (Mo. App. 1987). Notice required by the Due Process Clause simply must “ensure that the opportunity for a hearing is meaningful,” so that once informed of an administrative action, the person “can turn to public sources to learn about the remedial procedures available to him.” Sneil, LLC v. Tybe Learning Center, Inc., 370 S.W.3d 562, 572 (Mo. banc 2012), quoting, City of West Covina v. Perkins, 525 U.S. 234, 240-41 (1999) (discussing property seizure notice). As noted in rejecting Mr. Carvalho’s other due process claim, due process “does not require notice that some particular step must be taken or that certain procedure be followed; the opportunity afforded is to make a choice of whether to ‘appear or default, acquiesce or contest.’” Stough, 506 S.W.3d at 404, quoting, Mullane, 339 U.S. at 314. The director had no obligation to act as counsel to the driver and inform him about the standards and burdens
IV. CONCLUSION
For the reasons stated above, this Court affirms.
LAURA DENVIR STITH, JUDGE
All concur.