Philip Lorenzo Gallagher v. Director of Revenue , 2016 Mo. App. LEXIS 145 ( 2016 )

In the Missouri Court of Appeals
Eastern District
DIVISION ONE
PHILIP LORENZO GALLAGHER, ) No. ED102720
)
Respondent, ) Appeal from the Circuit Court
) of St. Charles County
vs. )
) Hon. Matthew E.P. Thornhill
DIRECTOR OF REVENUE, )
) Filed:
Appellant. ) February 23, 2016
The Director of Revenue appeals from the judgment of the trial court reinstating
the driving privileges of Philip Gallagher, which were suspended after his arrest for
driving while intoxicated. The Director argues that the trial court erred in excluding from
evidence the breath sample results showing Gallagher’s blood alcohol content (“BAC”)
was over the legal limit. We agree, and therefore reverse and remand.1
Gallagher was arrested for driving while intoxicated after a traffic stop, during
which he performed poorly on field sobriety tests, displayed some indicia of intoxication
and told the arresting officer he had “drank a lot.” He agreed to provide a breath sample
on an Alco Sensor IV breath analyzer, the results of which showed his BAC was .152
percent, well over the legal limit of .08 percent. His license was suspended, and
Gallagher filed a petition for a trial de novo.
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This case is being handed down in conjunction with Heister v. Director of Revenue, ED 102985 (Mo.
App. E.D. Feb. 23, 2016), in which this Court affirms the trial court’s admission of the BAC evidence in
that case for reasons identical to those set forth in this Opinion.
At trial, Gallagher objected to the admission of the breath sample results on the
ground that the compressed ethanol-gas mixture used to maintain the breath analyzer was
not provided from an approved supplier under Department of Health and Senior Services
regulations. On the maintenance report, the inspecting officer had listed “Intoximeters”
in the box labeled “Standard Supplier” of the gas mixture. Intoximeters, Inc. is an
approved supplier under the regulation. See 19 CSR 25-30.051(6). The certificate of
analysis accompanying that report indicated that the gas mixture was manufactured by
Airgas Mid America and listed Intoximeters as Airgas’s customer. The trial court found
that Airgas was not an approved supplier under the regulation. The trial court reasoned
that because Intoximeters did not manufacture the gas mixture, and instead merely served
as a “middleman” between the manufacturer and law enforcement, Intoximeters was not
the supplier. On that basis, it excluded the breath sample results and—there being no
admissible evidence of Gallagher’s BAC—ordered the Director to remove the suspension
and reinstate his driving privileges. This appeal follows.
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 v. Director of Revenue,
462 S.W.3d 459, 462 (Mo. App. E.D. 2015). To establish that a driver’s BAC was over
the legal limit, the Director may introduce evidence of the results of a breath analyzer
test. Id. To lay a foundation for admission of those results, the Director must establish
that the test was performed using the approved techniques and methods of the
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Department of Health and Senior Services, by an operator holding a valid permit and on
equipment and devices approved by the Department. Id.
The Department has promulgated regulations regarding the maintenance of breath
analyzers that must be followed in order for the results taken from that machine to be
admissible at trial. In relevant part, they provide that the “[c]ompressed ethanol-gas
standard mixtures used to verify and calibrate evidential breath analyzers shall be
mixtures provided from approved suppliers.” 19 CSR 25-30.051(5). There are four
approved suppliers listed in the regulation, including Intoximeters; Airgas is not an
approved supplier. 19 CSR 25-30.051(6). The Director argues that this regulation does
not require that the gas mixture be manufactured by one of the approved suppliers listed
therein, only that the gas mixture be provided to law enforcement from one of those
approved suppliers. Although Airgas manufactured the gas mixture in this case,
Intoximeters was clearly listed on the maintenance report as the supplier. Therefore, the
Director contends, the trial court incorrectly concluded that because Intoximeters was not
the manufacturer, it was not the supplier. We agree.
Because the trial court’s exclusion of the evidence was based solely on
interpretation of this regulation, the issue before us is a question of law that we review de
novo. See McGough, 462 S.W.3d at 462. Administrative regulations are interpreted
under the same principles of construction as statutes. Id. Our goal is to ascertain the
agency’s intent and give effect thereto by considering the plain meaning of the words
used in the regulation. Missouri Title Loans, Inc. v. City of St. Louis Board of
Adjustment, 62 S.W.3d 408, 414 (Mo. App. E.D. 2001). We conclude that the plain
meaning of “provided from approved suppliers” requires only proof that the entity that
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provided the gas mixture to law enforcement was an approved supplier; there is no
further requirement of proof regarding the manufacturer or any other entity in the chain
of supply.
The regulation refers only to the suppliers that provide the gas mixture and says
nothing about manufacturers. See 19 CSR 25-30.051(5)-(6). We must presume this
choice of wording is not meaningless. See State Board of Registration for Healing Arts
v. Boston, 72 S.W.3d 260, 265 (Mo. App. W.D. 2002). Choosing the word “supplier”
and not “manufacturer” is important because suppliers and manufacturers are distinct
entities. A “supplier” is one “engaged, directly or indirectly, in making a product
available to consumers”; it “may be the seller, the manufacturer, or anyone else in the
chain [that] makes the product available to the consumer.” Black’s Law Dictionary (10th
ed. 2014) (internal quotation marks and citation omitted). On the other hand, a
manufacturer is one “engaged in producing or assembling new products.” Id. Thus,
Intoximeters need not have produced the product it provided in order to be considered a
supplier under the regulations. It may be reasonable in some cases to infer that if a
certain entity manufactured the product, it also supplied it to law enforcement. See, e.g.,
Selix v. Director of Revenue, 985 S.W.2d 380, 383 (Mo. App. E.D. 1999). But here no
such inference is necessary—nor would it be reasonable to draw one—because there was
evidence to the contrary. The evidence showed that the gas mixture was manufactured
by Airgas, which then sold it to its customer, Intoximeters. Then Intoximeters supplied
the gas mixture to law enforcement, the ultimate consumer of this product. The trial
court erred in concluding that because it did not manufacture the gas mixture,
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Intoximeters could not be deemed the supplier. There is simply no support for that
conclusion in the plain language of the regulation.
The evolution of this regulation also demonstrates that the manufacturer of the
material used to verify and calibrate the breath analyzer is no longer relevant for purpose
of laying a foundation for the admission of results from that machine. At one time, the
regulation required breath analyzers to be verified and calibrated using only simulator
solutions, which had to be “certified by the manufacturer of that solution.” See, e.g.,
McDonough v. Director of Revenue, 977 S.W.2d 278, 280 (Mo. App. E.D. 1998)
(affirming exclusion of results where no evidence of solution manufacturer). But that
requirement was removed and replaced with a requirement that the solution be “certified
by the supplier.” Changes thereafter simplified the requirements so that certification was
not needed; rather, the solution needed only to have been “from approved suppliers,” and
that could be proven simply by showing that an approved supplier was listed on the
maintenance report. See Sheridan v. Director of Revenue, 103 S.W.3d 878, 880-81 (Mo.
App. E.D. 2003) (supplier’s name on maintenance report was sufficient evidence that
solution came from approved supplier; reversible error to exclude results solely because
no certificate of analysis also in evidence). In 2012, the Department approved the use of
compressed ethanol-gas mixtures, like that used in this case, to verify and calibrate breath
analyzer machines. Again, the regulation currently requires only that the gas mixture be
“provided from approved suppliers,” and no further certification is required.
These changes—from requiring certification by the manufacturer to simply
requiring that the product be provided from an approved supplier—may signal that the
Department now entrusts the approved suppliers with ensuring that the solution or gas
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mixture they provide to law enforcement meets Department standards, whether they
manufacture it themselves or get it from another entity. See 19 CSR 25-30.051(5) (A)-
(C) (identifying approved concentration values for gas mixtures). At the very least, the
changes indicate that to lay the foundation for admissibility of a breath sample result, the
Director need only prove that the gas mixture used by law enforcement to maintain the
breath analyzer was provided from one of the approved suppliers listed in the regulation.
Gallagher argues that because the regulation says “provided from” it refers to the
starting point of the physical movement of the gas mixture into the chain of supply.
Under this interpretation, he contends, we must conclude that the gas mixture in this case
was “provided from” Airgas and, because Airgas is not an approved supplier, the
Director has not met its burden. To find that Intoximeters was the starting point of the
gas mixture, Gallagher continues, when it was merely a distributor (not any different than
a delivery company like Fed Ex) would subvert the meaning of the word “from” and lead
to absurd results. This argument is without merit because the analysis relies entirely on a
particular preposition without regard to the meaning of the substantive term “supplier”
that follows it. As shown above, Intoximeters fits squarely within the plain meaning of
supplier, and further proof of the origins of the gas mixture is not required. Gallagher
also argues that Airgas should at least be considered another supplier of the gas
mixture—albeit from further back in the supply chain—which he claims calls into
question the admissibility of the breath sample results since Airgas is not approved under
the regulation. But proof that every entity in the supply chain was an approved supplier
is simply not required under the regulation.
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In sum, Intoximeters was clearly identified as the supplier that provided law
enforcement the gas mixture to verify and calibrate the breath analyzer used to test
Gallagher’s BAC at the time of his arrest. Intoximeters is an approved supplier under 19
CSR 25-30.051, and therefore proper foundation was laid for the admission of the breath
sample results. Therefore, we find the trial court erred in excluding those results. Point
is granted. We need not address the Director’s alternative ground for reversal based on
waiver of Gallagher’s foundational objection.
The judgment of the trial court is reversed. Gallagher specifically challenged
probable cause for his arrest in his petition for trial de novo and at the conclusion of the
evidence at trial, but the trial court made no findings on probable cause given its
disposition on the BAC evidence. Therefore, we must remand the case for further
proceedings consistent with this opinion. See McGough, 462 S.W.3d at 464-65 n.5.
ROBERT G. DOWD, JR., Presiding Judge
Mary K. Hoff, J. and
Roy L. Richter, J., concur.
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