Opinion
No. ED 82530
October 28, 2003
Appeal from the Circuit Court of Marion County, Honorable John J. Jackson.
John Munson Morris III, Evan J. Buchheim, Asst. Attorney General, P.O. Box 899, Jefferson City, MO, 65102-0899, for appellant.
Branson L. Wood III, 1001 Center Street, Hannibal, MO, 63401, for respondent.
Director of Revenue ("Director") appeals from a judgment in the Circuit Court of Marion County reinstating Scott D. Walker's ("Driver") driver's license. Director asserts that the trial court erred in setting aside Director's suspension of Driver's driving privileges because the trial court's judgment was a misapplication of the law, against the weight of the evidence, and unsupported by substantial evidence. We agree and reverse and remand.
Hannibal Police Officer Gloria Hobbs ("Officer") arrested Driver in Marion County for driving while intoxicated ("DWI") on October 11, 2001. Officer observed Driver swerving, driving on the fog line, and crossing the centerline twice before she initiated a stop of Driver's vehicle. Upon contact with Driver, Officer noticed that his movements were slow, he smelled faintly of alcohol, and his eyes were watery, bloodshot, and glassy. Driver told Officer that he had drunk two beers, consuming between 24 and 32 ounces of beer at a bar located about four to five miles from the location where Officer stopped him. Officer asked him to perform sobriety tests, including the horizontal gaze nystagmus test, the walk-and-turn test, the heel-to-toe test, and the one-leg stand test. He failed each of these tests, and Officer arrested him for DWI.
After Officer transported Driver to the Hannibal Police Department, she obtained Driver's consent to take his breath test using a DataMaster breath analyzer. Officer observed Driver for at least fifteen minutes prior to administering his breath tests. During that time, Driver did not put anything in his mouth, did not vomit, and did not smoke. Officer completed the required checklist for the DataMaster while administering the tests. Driver took the breath test two times but was unable to provide accurate results by blowing into the machine. Before Driver took the third test, Officer asked Driver to remove his dentures. He agreed to do so, and he then provided an adequate sample for testing. His third breath test indicated that his blood alcohol concentration ("BAC") was .113 percent.
Acting pursuant to section 302.505 RSMo Cum. Supp. 2001, Director suspended Driver's license because his BAC exceeded .08 percent. Driver filed his petition in the circuit court under section 302.535 RSMo 2000, requesting de novo review of Director's action. At the trial de novo, Director presented evidence to establish the prima facie case for the revocation of Driver's license. Driver then presented rebuttal evidence, including the testimony of Dr. Terry Martinez, an expert witness in pharmacology and toxicology. After hearing evidence from both Director and Driver, the trial court entered a judgment ordering the reinstatement of Driver's driving privileges. Director now appeals.
Section 302.505.1 in relevant part instructs the Department of Revenue that:
The department shall suspend or revoke the license of any person upon its determination that the person was 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. . . .
All further statutory references are to RSMo 2000 unless otherwise indicated.
Director's only point on appeal asserts that the trial court erred in setting aside the suspension of Driver's license. Director states that the judgment was in error because: (1) Director proved that the arresting officer had probable cause to arrest Driver for DWI; (2) Driver's breath test result was .113 percent; and (3) Driver failed to rebut the Director's prima facie case by proving by a preponderance of the evidence that either there was not probable cause for arrest or that Driver's BAC was below .08 percent.
We will uphold the judgment of the trial court unless it is not supported by substantial evidence, unless it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.banc 1976).
We defer to the trial court's determination of credibility. Verdoorn v. Dir. of Revenue, No. SC85101, 2003 Mo. LEXIS 133, at *5 (Mo.banc Sept. 30, 2003). If the evidence is uncontradicted and the real issue is a legal issue about the legal effect of the evidence, however, we will not defer to the trial court's judgment. Id. at *5-6. We will not affirm the judgment of the trial court simply by disregarding the uncontradicted evidence that support's Director's action against Driver. Kienzle v. Dir. of Revenue, 944 S.W.2d 326, 328 (Mo.App. 1997).
Under section 302.505, Director establishes the prima facie case for the suspension of a driver's license by showing, by a preponderance of the evidence, that (1) the driver was arrested upon probable cause to believe he was driving while intoxicated and that (2) the Driver's BAC was at least .08 percent by weight at time he was driving. Meyer v. Dir. of Revenue, 34 S.W.3d 230, 232 (Mo.App. 2000), overruled on other grounds by Verdoorn, 2003 Mo. LEXIS 133; section 302.505 RSMo Cum. Supp. 2001.
If Director proves that the driver's BAC was at least .08 percent, it creates the presumption that the driver was intoxicated. Verdoorn, 2003 Mo. LEXIS 133, at *6-7. The driver, however, is then able to rebut Director's prima facie case with evidence that his BAC did not exceed .08 percent. Id. at *7.
While Director's first point asserts that Driver was required to rebut Director's prima facie case by a preponderance of the evidence, that is no longer the proper standard for Missouri courts to apply. See Verdoorn, 2003 Mo. LEXIS 133, *8-10. Now, once Director establishes the prima facie case against a driver, "the burden of production switches to the driver to adduce evidence that [driver's BAC] did not exceed the legal limit." Verdoorn, 2003 Mo. LEXIS 133, at *7. The burden of persuasion, producing evidence meeting the preponderance of the evidence standard, however, remains on Director throughout the case. Id. at *10. The Driver's burden of production requires that he challenge the presumption of validity of Director's prima facie case. Id. In determining if Driver meets this burden of production, we apply our standard of review under Murphy v. Carron, which instructs that the trial court's decision must be supported by substantial and competent evidence. See Murphy, 536 S.W.2d at 32.
We find the trial court incorrectly determined that Driver had produced sufficient rebuttal evidence for reinstating his license. While Director is incorrect that Driver needed to rebut Director's case by a preponderance of the evidence, we agree that Driver failed to rebut the prima facie case against him. Our review of the evidence shows that Director met its burden under section 302.505 and that suspension of Driver's license was warranted.
To suspend or revoke Driver's license under section 302.505.1, Director must show there was probable cause to arrest Driver for DWI. Johnson v. Dir. of Revenue, 920 S.W.2d 129, 131 (Mo.App. 1996) (citing Cook v. Dir. of Revenue, 890 S.W.2d 738, 739 (Mo.App. 1995)). Director clearly established this. "Probable cause exists where the police officer observes a traffic violation or unusual operation of a vehicle and upon stopping the motorist indications of alcohol consumption are noted."Johnson, 920 S.W.2d at 131. Additionally, probable cause for DWI that in turn supports Director's suspension of a driver's license can be developed after the driver has been otherwise properly stopped. Id. at 132. Probable cause also "exists when the facts and circumstances warrant a person of reasonable caution to believe that a [DWI] offense has been or is being committed," based on the circumstances as they appear to a "prudent, cautious and trained police officer." Id.
In this case, Officer testified that she stopped Driver's vehicle after seeing him swerving, crossing the centerline, and driving on the fog line. Officer then noticed that Driver's movements were slow and that he smelled of alcohol. She also noted that his eyes were watery, bloodshot, and glassy. He admitted to Officer that he had consumed two beers before leaving a bar about five miles from where Officer stopped him. He also failed the field sobriety test Officer administered. This evidence was sufficient to establish Director's prima facie case on the first prong of section 302.505.1, and Driver did not produce evidence sufficient to rebut that there was probable cause for Officer to arrest him for DWI.
Director also proved the second prong required for the suspension of Driver's license, that Driver's BAC was at least .08 percent at the time of his arrest for DWI. To establish a prima facie foundation for the admission of breathalyzer test results, Director must show that the test was administered in accordance with the approved methods and techniques, was given by an officer with proper permits to give the test, and was performed on equipment or devices approved by the Department of Health.Green v. Dir. of Revenue, 961 S.W.2d 936, 939 (Mo.App. 1998), overruled on other grounds by Verdoorn, 2003 Mo. LEXIS 133. Director presented evidence that properly laid this foundation. Director presented evidence that Driver's breath test measured his BAC as .113 percent. Once Director presents evidence of BAC from a test administered in accordance with established procedures, a claim that the results are invalid can only succeed if evidence suggests a malfunction of the breath testing machine. Walker v. Dir. of Revenue, 922 S.W.2d 57, 58 (Mo.App. 1996). Driver did not present evidence that the DataMaster used to test his BAC the night of his arrest malfunctioned. Driver, however, advanced four theories at trial to attempt to rebut Director's claim that his BAC was above .08 percent.
Through the testimony of Dr. Martinez, Driver first asserted that blowing into a breath analyzer multiple times without changing the mouthpiece could have caused an elevated BAC reading. Dr. Martinez stated that failure to change the mouthpieces between breath tests caused condensation in the mouthpiece that could have impacted the BAC results. Dr. Martinez advocated that the mouthpiece should have been changed between tests to produce an accurate result. He also asserted that the waiting period between tests should have been greater to maximize the accuracy of the test results. Dr. Martinez, however, did no testing in general or on Driver to show the amount of impact repeated blowing or use of the same mouthpiece may have had on Driver's BAC reading.
Director's witness, Bill Whitmar ("Director's Witness"), head of the Breath Alcohol Program for the Missouri Department of Health and Senior Services, however, testified that he had conducted tests to measure the effects of repeated blowing without changing the mouthpiece. Those testing results for the DataMaster indicated that using the same mouthpiece caused BAC to register .003 percent less than its actual amount.
Despite Driver's presentation of Dr. Martinez's differing opinions regarding repeated blowing impacting BAC, inconclusive testimony is not sufficient to rebut the presumption of intoxication established by Director's prima facie case. Verdoorn, 2003 Mo. LEXIS 133, at *11. Additionally, this court found in Meyer that a driver was unable to defeat Director's prima facie case by arguing that the mouthpiece needed to be changed between simultaneous tests performed by a driver. Meyer, 34 S.W.3d at 234-35. We noted in Meyer that the Department of Health has no rules, regulations or guidelines that require an officer to change the mouthpiece on the DataMaster between tests. Id. Driver's first rebuttal theory did not defeat Director's prima facie case.
Driver's second theory of rebuttal argues that removing his dentures on the third breath test exposed mouth alcohol that artificially inflated his breath test result. Dr. Martinez indicated that removing Driver's dentures on his third test could have exposed alcohol in his denture adhesive that may have affected his BAC reading. Dr. Martinez, however, did not know if any studies had been done to indicate this. Dr. Martinez offered no definitive opinion as to what amount of impact removal of dentures could have had on Driver's BAC results.
Director's Witness testified, however, that the DataMaster is designed to detect the presence of mouth alcohol and to indicate that an "invalid [breath] sample" has been obtained if mouth alcohol is present. Director's Witness also testified that he had conducted testing on denture adhesive as it related to BAC. He found that after 15 minutes no residual alcohol remained in the denture adhesive. Driver was stopped at 12:21 a.m., observed for 15 minutes by Officer before any BAC tests were performed, and did not take the third breath test until 1:08 a.m. It is therefore unlikely that any residual alcohol remained in Driver's denture adhesive that could have impacted his BAC reading.
Related to Driver's second theory of rebuttal, Driver, in response to this appeal, argues that removal of his dentures was prohibited because breath tests cannot be properly conducted if there is "oral intake" before testing. Driver correctly argues waiting 15 minutes after anything is put into or taken from the driver's mouth is required for an accurate BAC reading. See Hansen v. Dir. of Revenue, 22 S.W.3d 770, 773 (Mo.App. 2000), overruled on other grounds by Verdoorn, 2003 Mo. LEXIS 133. The court's focus on this rule, however, is to be guided by the rule's purpose, rather than rote procedure. Id. "[W]hen the record shows that the subject has not smoked, vomited, or otherwise placed anything in the mouth prior to administration of the breath analysis test, the purpose of the rule is fulfilled." Id. Prohibited oral intake is that which can taint the test results or cause the BAC testing machine to malfunction.Green, 961 S.W.2d at 939. In Green, we held that the presence of dentures did not constitute oral intake such that they should be removed before testing. Id. Similarly, we do not find that removal of Driver's dentures constituted prohibited oral intake that would invalidate the results of his BAC test. The rule regarding oral intake seeks to minimize the risk of tainted BAC results. See id. Driver's dentures were removed to increase the reliability of Driver's breath test by increasing Driver's breath flow, which was weakened by asthma. Driver's second rebuttal point failed to defeat Director's prima facie case.
Driver's third rebuttal argument asserts that his asthmatic condition might have caused a false breath test result. Dr. Martinez conducted pulmonary function and absorption tests on Driver four months after Driver's arrest. He concluded that Driver's breath test on the night of his arrest overstated the amount of alcohol in his blood by 30.7 percent. Dr. Martinez asserted that Driver's decreased lung function caused his BAC to register higher, and thus caused him to have a "partition ratio" less than the 2100 to 1 ratio mandated by sections 577.012.2 and 577.037.2 RSMo Cum. Supp. 2001. Dr. Martinez, however, tested Driver with a hand-held Intoximeter breath analyzer machine, not the DataMaster. Director presented evidence that the machine Dr. Martinez used is not approved for use as an evidential unit in Missouri. Further, Dr. Martinez's calculations were based on measurements of blood taken from Driver's veins during testing. The DataMaster, however, measures arterial blood alcohol, which feeds the lungs, brain, and central nervous system, and only then becomes venous blood. Even if the trial court accepted Dr. Martinez's calculations that Driver's BAC was overstated by 30.7 percent, Driver's BAC would have been above the legal limit of .08 percent. Thus, Dr. Martinez's testimony relating to Driver's third rebuttal theory was not sufficient evidence to rebut Director's prima facie case.
"Partition ratio" refers to the percent by weight of alcohol in the blood as measured by grams of alcohol per 100 milliliters of blood or 210 liters of breath, and can be shown by chemical analysis of blood, breath, saliva, or urine. Sections 577.012.2 and 577.037.2 RSMo Supp. 2001.
Lastly, Driver attempted to rebut Director's prima facie case by arguing that his BAC was less than .08 percent while he was driving. Dr. Martinez testified regarding the absorption rate and peak time that alcohol was present in Driver's bloodstream. Dr. Martinez asserted that Driver's peak absorption of alcohol would have occurred 45 minutes after Driver's last drink, and therefore any BAC testing done after Officer stopped Driver would necessarily reflect a BAC higher than Driver's BAC while driving. We note, however, that "Director is only required to show driver's BAC at the time of the test." Walker, 922 S.W.2d at 59. "It would be unreasonable to require a showing of driver's BAC at the actual moment of driving." Id.
"When the legislature provided for the admissibility of BAC, it had to know that there would be some period of time from the determination of probable cause until the [breath] test was given." Green, 961 S.W.2d at 938 (internal citations omitted). For that reason, Director is not required to show evidence that Driver's BAC was above the legal limit while driving if "it can be reasonably assumed from the other evidence that his BAC at the time of driving" was above the legal limit. Id. (internal citations omitted). Driver admitted that he consumed between 24 and 32 ounces of beer at a bar about five miles from where Officer stopped him. He had his first beer about 20 minutes before he was stopped, and he was drinking until he left the bar, which he testified was no more than 5 minutes before Officer stopped him. Driver testified that he was keeping track of time that night because he wanted to be "out of the bar and gone before closing time . . . to avoid what evidently happened." Driver's fourth rebuttal theory did not overcome Director's prima facie showing that his BAC was above the legal limit.
Director established the prima facie case for suspension of Driver's license under section 302.505 RSMo Cum. Supp. 2001 by showing that Driver was arrested upon probable cause that he was driving with a BAC above the legal limit. Even when the evidence is viewed in the light most favorable to Driver, his presentation of evidence failed to rebut Director's prima facie case showing that his BAC was above .08 percent. The trial court erred in setting aside Director's action against Driver. The trial court's judgment is reversed, and we remand to the trial court with instructions to enter a judgment affirming Director's suspension of Driver's license.
Sherri B. Sullivan, C.J., and Clifford H. Ahrens, J., concur.