Samuel Hiester v. Director of Revenue ( 2016 )

In the Missouri Court of Appeals
Eastern District
DIVISION ONE
SAMUEL HIESTER, ) No. ED102985
)
Appellant, ) Appeal from the Circuit Court
) of St. Louis County
vs. )
) Honorable Ellen H. Ribaudo
DIRECTOR OF REVENUE, )
)
Respondent. ) FILED: February 23, 2016
Samuel Hiester ("Driver") appeals from the trial court's judgment, following a trial de
novo, sustaining the Director of Revenue's ("Director's") decision to suspend Driver's license for
driving with a blood-alcohol concentration ("BAC") of 0.08 percent or more, in violation of
Section 302.505.1, RSMo (2000). We affirm.1
I. Background
Driver was arrested upon probable cause to believe he was driving while intoxicated on
August 6, 2014. Driver consented to submit to a breath test on an Intox DMT breath analyzer2,
and the results showed his BAC was .164 percent, more than double the legal limit of .08
1
This case is being handed down in conjunction with Philip Gallagher v. Dir. of Revenue, No. 102720 (Mo. App.
E.D. Feb. 23, 2016). In both cases, the respective drivers challenged the admissibility of the results of their breath
tests due to the "provided from" language in the regulation.
2
The Intox DMT is a forensic breath-testing device that measures ethanol (commonly termed "alcohol") and is
based on the principles of infrared spectrometry. The DMT accurately determines the amount of alcohol in end-
expiratory breath at the time the test is administered. Breath alcohol concentration is directly proportional to blood
percent. This led the Director to suspend Driver's license, and Driver filed a petition for a trial de
novo.
At trial, Driver argued the results of the breath test should not be admissible as the
compressed ethanol-gas mixture ("the Mixture") used to perform maintenance checks on the
Intox DMT was not provided from an approved supplier under Department of Health and Senior
Services regulations. The maintenance report reflected that Officer Matthew Loveless, the
officer who performed the maintenance check, marked boxes to indicate the "Standard Supplier"
of the Mixture was Intoximeters, Inc. ("Intoximeters"). Intoximeters is one of the approved
suppliers listed by the Department of Health and Senior Services. See 19 CSR 25.30.051(6).
The certificate of analysis of the Mixture, as well as Officer Loveless's testimony, indicated that
Intoximeters was the supplier of the mixture and that Airgas USA, LLC ("Airgas") was the
manufacturer.
The trial court found Officer Loveless's testimony credible, and in its judgment found
that the regulations "do not make a distinction between supplier and manufacturer . . . ." Thus,
the trial court found the results of the breath test admissible, and ultimately sustained the
Director's suspension of Driver's license. This appeal followed.
II. Discussion
In his sole point on appeal, Driver argues the trial court erred in overruling Driver's
objection to the admission of his breath test results because the Director failed to establish the
statutory compliance necessary to make the test admissible. Driver claims the Mixture used as
the breath analyzer accuracy standard in the maintenance check of the equipment used was not
"provided from" the proper company.
alcohol concentration. They need not be compared, since both are equally reliable and established measures of
intoxication. See "Type III Operator Manual, Section 3-D: Intox DMT," Missouri Breath Alcohol Program, Breath
Alcohol Operator Manual, published by Missouri Department of Health and Senior Services, updated June 2013.
2
Standard of Review
Upon appeal from a court-tried case, we will affirm the trial court's judgment 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)
(citing Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976)).
"The nature of our review is directed by whether the particular issue is a question of fact
or law." Cortner v. Dir. of Revenue, 408 S.W.3d 789, 792 (Mo. App. E.D. 2013). Driver's claim
involves interpretation of a regulation, and "[a]dministrative rules and regulations are interpreted
under the same principles of construction as statutes." McGough v. Dir. Of Revenue, 462
S.W.3d 459, 462 (Mo. App. E.D. 2015). Statutory interpretation is a matter of law, which we
review de novo. Bender v. Dir. of Revenue, 320 S.W.3d 167, 169 (Mo. App. E.D. 2010).
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, 462 S.W.3d at 462. 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 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
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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). Driver argues
that the regulation requires the Mixture to not only be provided to law enforcement from one of
those four approved suppliers, but to also be manufactured by one of those four approved
suppliers. Driver claims the trial court erred in finding Intoximeters was an approved supplier
when it did not manufacture the Mixture. We disagree.
Our goal in interpreting regulations is to ascertain the agency's intent and give effect
thereto by considering the plain words used. Mo. Title Loans, Inc. v. City of St. Louis Bd. 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 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 who provide the gas mixture and makes no
mention of manufacturers. See 19 CSR 25-30.051(5)-(6). We must presume this choice of
wording is not meaningless. See State Bd. 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 who 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
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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.
Dir. 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 Mixture was manufactured by Airgas, which then sold it to its
customer, Intoximeters. Intoximeters then supplied the gas mixture to law enforcement, the
ultimate consumer of this product.
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 the 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. Dir. 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. Dir. 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
5
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 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.
Driver argues that because the regulation says "provided from" it refers to the actual
starting point of the Mixture, which would mean that Airgas is the supplier as it manufactured
the Mixture. Driver contends Intoximeters was merely a distributor, no different than a delivery
company like FedEx, and therefore it does not qualify as an approved supplier under the
regulation. 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.
Intoximeters was clearly identified on the maintenance report as the supplier that
provided law enforcement with the Mixture used to verify and calibrate the Intox DMT breath
analyzer used to analyze Driver's BAC at the time of his arrest. Intoximeters is an approved
6
supplier under 19 CSR 25-30.051, and thus proper foundation was laid for the admission of the
breath test results. Driver's sole point on appeal is denied.3
III. Conclusion
The judgment of the trial court is affirmed.
___________________________________
ROY L. RICHTER, Judge
Robert G. Dowd, Jr., P.J., concurs.
Mary K. Hoff, J., concurs.
3
Driver's motion for attorney's fees is also denied.
7