Thomas Michael Prade v. Director of Revenue ( 2016 )

In the Missouri Court of Appeals
Eastern District
DIVISION ONE
THOMAS MICHAEL PRADE, ) No. ED103332
)
Respondent, ) Appeal from the Circuit Court
) of St. Charles County
vs. )
) Hon. Matthew E.P. Thornhill
DIRECTOR OF REVENUE, )
) Filed:
Appellant. ) June 21, 2016
The Director of Revenue appeals from the judgment of the trial court reinstating the driving
privileges of Thomas Prade, 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 Prade’s blood alcohol content (“BAC”) was over the legal limit. We agree and, therefore,
reverse and remand.
Prade was arrested for driving while intoxicated after a traffic stop, during which he
performed poorly on field sobriety tests and displayed some indicia of intoxication. He agreed to
provide a breath sample on an Alco-Sensor IV breath analyzer, the results of which showed his
BAC was .146 percent, well over the legal limit of .08 percent. His license was suspended, and
Prade filed a petition for a trial de novo.
Prade objected to the admission of the breath sample results. He argued 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 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). It was undisputed that the certificate of analysis, which is not in the record
on appeal, showed that the gas mixture was manufactured by Airgas Mid America and that
Intoximeters was Airgas’s customer. 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 Prade’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 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,
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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. Prade argues that because the regulation says “provided from
approved suppliers” it refers to the actual starting point of the gas mixture and since Airgas is
where the mixture started, Intoximeters cannot be an approved supplier. He also contends that, at
the very least, there were two suppliers—Intoximeters and Airgas—and one of them was not on
the approved list and therefore the BAC results were properly excluded.
Both of Prade’s arguments have been squarely rejected by this Court in Gallagher v.
Director of Revenue, where we held 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.” 2016 WL 720619 at *2 (Mo. App. E.D February 23, 2016) (Motion
for Rehearing and/or Transfer to Supreme Court filed in Court of Appeals denied April 12, 2016);
see also Hiester v. Director of Revenue, 2016 WL 720675 (Mo. App. E.D. February 23, 2016)
(Application for Transfer to Supreme Court filed in Court of Appeals denied April 12, 2016;
Application for Transfer filed in Supreme Court denied May 24, 2016). Thus, Intoximeters need
not have produced the gas mixture it provided in order to be considered a supplier of that product
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. Gallagher, 2016 WL 720619 at *2 (citing 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 it was undisputed that the gas
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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,
Intoximeters could not be deemed the supplier. There is simply no support for that conclusion in
the plain language of the regulation. See Gallagher, 2016 WL 720619 at *2.
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 Prade’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. Excluding those results was
error. Point granted.
The judgment of the trial court is reversed. Given its disposition on the BAC evidence, the
trial court made no findings on whether the Director met its burden to prove probable cause for
Prade’s arrest. Therefore, we must remand the case for further proceedings consistent with this
opinion. See id. at *3 (citing 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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