DocketNumber： No. WD 36406
Citation Numbers： 696 S.W.2d 846
Judges： Gler, Manford, Shan, Turnage
Filed Date： 7/16/1985
Status： Precedential
Modified Date： 10/19/2024
dissenting.
I must respectfully dissent in said cause.
I fully appreciate the practical result sought by the majority opinion, but in my judgment, the majority opinion presents a result-oriented opinion. Such is not the prerogative of this court or any other court, although this writer is not so naive
The issue presented is whether or not the breath analyzer test was administered in accordance with the rules of the Missouri Department of Health, as required by § 577.026, RSMo Supp.1982. Specifically, Rule 13 C.S.R. 50-140.060 provides the following, and becomes the specific rule applicable to the instant case: “(10) In using the Alco-Analyzer Model 2000, observed subject for at least (15) minutes — no smoking or oral intake of any material during this time; if vomiting occurs, start again with the fifteen (15) minute observation period.”
Concerning the facts herein, the parties dispute what effect, if any, the interruption (due to the absence of the trooper) had on the required fifteen-minute observation prescribed by the above rule. The state, of course, contends that the interruption did not invalidate the test result and of course, respondent contends just the opposite.
What this court must determine, of course, is the intent to be given the above rule. In determining this issue, the courts are guided by well-established rules of construction to establish the legislative intent and the effect to be given that intent. Sermchief v. Gonzales, 660 S.W.2d 683, 688 (Mo. banc 1983). Words within a statute are to be attributed their plain and ordinary meaning. The meaning accorded a statute is an issue of law and thus for the courts to determine and is not one of fact. State v. Morrow, 535 S.W.2d 539, 540 (Mo.App.1976). Research has failed to disclose a Missouri case which precisely holds that general rules of construction are applicable to rules and regulation, but such is the general rule where the question has been raised. See 73 C.J.S. Public Administrative Law and Procedure § 94 (1983) and 1 A.C. Sands, Sutherland, Statutory Construction, § 31.06. It should be held herein that the intent of rules and regulations shall be determined by the general rules of construction as applied and followed when reviewing and construing statutes. The purpose given for the rule applicable herein is disclosed as follows:
PURPOSE: This rule establishes step-by-step operating procedures for all of the approved breath analyzers in 13 CSR 50-140.050. Prosecuting attorneys have requested that these procedures be included as a rule so they can be introduced in court to show that operators of breath analyzers have adhered to the operating procedures set forth and approved by the Missouri Division of Health ... 13 CSR 50-140.060. (emphasis added)
It therefore must be concluded that the obvious intent of the above rule, 13 CSR 50-140.060(10), is to establish certain procedures which must be strictly adhered to in order that results of breath analyzer tests may be properly introduced in court proceedings. Section 577.026, RSMo Supp. 1982 provides that chemical tests to be considered valid shall be performed according to the methods and devices approved by the Missouri Division of Health.
It follows that to strictly adhere to the applicable regulations, a subject must be observed continually for a period of not less than fifteen (15) minutes before a test is administered. The obvious purpose is to make certain that the subject has not ingested any material, smoked, or vomited during the observation period. In the instant case, because of the particular facts and circumstances, respondent herein was not observed by the trooper (who was also the operator) for a period of approximately one minute. This lack of observation should not adversely reflect upon the trooper herein because, as the evidence reveals, he was in fact performing his duties by effecting another and separate arrest. The result, however, is there was not a continual minimum fifteen minute observation period prior to the administration of the breath analyzer test by the operator. As hind sight is always one hundred percent, it is easy to state that what the trooper should have done was to have observed
The main thing overlooked by the majority opinion is that the rules and regulations applicable to breath analyzers are directed to persons qualified to operate them. It must follow that the same rules concerning observation of the person to be tested are limited to and directed to such operators and not other possible or potential witnesses.
The assertion by the state that normal blinking, turning of the head, and even sneezing would result in an interruption of the operator’s observation, while perhaps are detractions from one’s observation, are not of such magnitude as is the leaving of one unobserved and unaccompanied in a patrol vehicle. In addition, such natural physical and bodily functions should not be construed as sufficient to result in an interruption of observation within the meaning of the above rule. In my opinion, it should be held that the same rule requires the minimum continual fifteen-minute observation be conducted and completed by persons qualified to operate the breath analyzer and perform the applicable test. It would, under the above rule, make no sense for an untrained individual to make the observation because such untrained individual lacks the knowledge and understanding of what he or she is to look for (i.e., ingestion of materials, smoking and/or vomiting) within the meaning and purpose of the rule and for purposes of administering the test.
The trial court did not err in suppressing the results of the breath analyzer test under the particular facts and circumstances herein, because the evidence clearly establishes that the respondent was not continually and without interruption observed by the trooper for a minimum of fifteen minutes as required by 13 CSR 50-140-060(10).
I would affirm the judgment.