JIMMY KENT RIGGINS v. DIRECTOR OF REVENUE (2016)

ORDER

All judges agree to affirm and further believe that an opinion would have no precedential value. Accordingly, the judgment of the Circuit Court of Greene County, in its case numbered 1331-CC01389, is unanimously affirmed in compliance with Rule 84.16(b).

The parties have been furnished with a written statement, for their information only, setting out the basis for the court's decision.

STATEMENT

THIS STATEMENT DOES NOT CONSTITUTE A FORMAL OPINION OF THIS COURT. IT IS NOT UNIFORMLY AVAILABLE. IT SHALL NOT BE REPORTED, CITED, OR OTHERWISE USED IN UNRELATED CASES BEFORE THIS OR ANY OTHER COURT. THIS STATEMENT SHALL BE ATTACHED TO ANY MOTION FOR REHEARING OR APPLICATION FOR TRANSFER TO THE SUPREME COURT FILED WITH THIS COURT.

On January 27, 2015, this court issued an opinion in this cause. On February 10, 2016, the Supreme Court of Missouri sustained an application for transfer to that Court. That same date, the Court entered an order retransferring the cause to this court.

The Director of Revenue (“the Director”) revoked the driver's license of Jimmy Kent Riggins (“Driver”) for operating a motor vehicle in June 2013 with a blood-alcohol content that exceeded the legal limit. See sections 302.505 and 302.525.¹ Driver petitioned for and received a trial de novo pursuant to section 302.535.² The trial court sustained Driver's objection to admission of Driver's breath-test results, ruled in its amended judgment (“the amended judgment”) that the Director “failed to establish that [Driver's] BAC [blood-alcohol content] was .08% or more by weight[,]” and ordered the Director “to remove the revocation” and “reinstate [Driver's] driving privileges to the extent he is otherwise eligible.”

In two points relied on, the Director contends the trial court erred in excluding the breath test for two reasons: (1) “the breath analyzer used to administer [Driver's] breath test had been properly verified and calibrated according to applicable regulations of the Department of Health and Senior Services [ (“DHSS”) ]” as only “a single concentration level” was necessary “when performing a calibration check”; and (2) the trial “court applied the wrong version of the [DHSS] regulation governing the verification and calibration of breath test devices” because “the regulation is procedural and is to be given retroactive application[,]” and “the version ․ in effect at the time of [Driver's] trial clearly stated that only a single concentration level of the standard simulator solution” was necessary in checking the breath analyzer's calibration.

This court is constitutionally bound to follow the latest controlling decisions of our supreme court, State v. Aaron, 218 S.W.3d 501, 511 (Mo. App. W.D. 2007), and its decision in Stiers v. Dir. of Revenue, ___ S.W.3d___, No. SC94840, 2016 WL 143230 (Mo. banc Jan. 12, 2016), requires us to affirm the judgment of the trial court.

Facts and Procedural Background

On June 14, 2013, Driver was approached by a Greene County Sheriff's Deputy at a “DWI checkpoint[.]” The officer, who smelled intoxicants emanating from Driver's vehicle, administered a field sobriety test to Driver, and Driver agreed to provide a breath sample. Driver's breath sample registered a blood alcohol concentration by weight of .169 % on an “ALCO-SENSOR IV WITH PRINTER” machine (“the breath analyzer”).

At Driver's March 21, 2014 trial de novo, the Director's counsel offered records that included Driver's breath test result. Driver's counsel objected to its admission, but the basis for his objection is not recorded in the docket entry related to the trial. The trial court did not make an immediate ruling on Driver's objection. Instead, it directed the Director to file a brief concerning that objection and permitted Driver to file a brief thereafter. The Director's trial brief maintained that Driver's position was that the version of 19 CSR 25-30.051 “in effect from December 30, 2012 to February 28, 2014 required Type II permit holders to use all three simulator standards each time they conducted a monthly maintenance check.”³ Driver's subsequent trial brief confirmed that the Director had stated Driver's position correctly.

The officer's report contained in Exhibit A indicated that it included a “[c]opy of [the] most recent Maintenance Report prior to test.” A form dated June 7, 2013 -- “ALCO-SENSOR IV WITH PRINTER MAINTENANCE REPORT” (“the maintenance report”) -- reflected the same serial number noted in the officer's report as the breath analyzer used on Driver, and the maintenance report was also included in Exhibit A. The relevant portion of the maintenance report is reproduced below:

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After the parties filed their trial briefs, the trial court entered its initial “JUDGMENT” in April 2014. That document stated “that the subject regulation unambiguously requires vapor concentrations at all three (3) of the delineated values. [The Director's] argument of retrospective application despite the plainly stated limitation in the 'savings clause', is circular. [Driver's] objection to the breathalyzer results is sustained.”

The trial court's subsequent amended judgment provided the same ruling on the admissibility of the breath test results as stated in the April 2014 ruling, added that “[b]ecause there was an insufficient foundation for admission of the breath test result, [The Director] failed to establish that [Driver's] BAC was .08% or more by weight[,]” and ordered a reversal of the Director's revocation as noted above.

Analysis

Point I asserts that the breath analyzer “had been properly verified and calibrated according to applicable regulations[,]” arguing, in part, that 19 CSR 25-30.051 does not exist in isolation and must be interpreted in the context of related rules, particularly 19 CSR 25-30.031.

The Director's brief, relying on 19 CSR 25-30.031, then presents the following cogent argument:

The rule defines when maintenance checks must be performed and requires that records of those maintenance checks be kept. 19 CSR 25-30.031(3) (Nov. 30, 2012). The rule also requires that maintenance checks be recorded on “the appropriate maintenance report form for the specific instrument being checked [.]” 19 CSR 25-30.031(7) (Nov. 30, 2012). Those approved forms were included with the rule in the Code of State Regulations and provide further insight into the intent behind the rules.

The approved form for the [breath analyzer] contained a section for recording the calibration check. That section contained the admonition, “Only one standard is to be used per maintenance report.” It also provided the following directions: “Run three tests using a standard solution. All three tests must be within + 5% of the standard value and must have a spread of .005 or less. Mark the box corresponding to the standard solution being used.” Below those instructions were three boxes: one for a ten-percent standard solution, one for an eight-percent standard solution, and one for a four-percent standard solution.

If the regulations required three calibration checks to be performed using three different standard solutions, DHSS would have included space on the maintenance reports for the results of calibration checks at all three vapor concentration percentages. Instead, DHSS included one box for one standard, and emphatically stated that only one standard value is to be used when performing a maintenance check.

Nor can the rule be reasonably construed to require that three separate maintenance reports -- one each for the four-percent, eight-percent, and ten-percent solutions -- be filled out by the Type II permit holder. To the contrary, 19 CSR 25-30.031 mandates that a permittee “shall retain the original report of the maintenance check and submit a copy of the report“ to [DHSS]. 19 CSR 25-30.031(3) (Nov. 30, 2012) (emphasis added). The use of the singular “report” rather than the plural “reports” shows that the permit holder is only required to fill out one maintenance report reflecting the performance of one calibration check using one of the listed vapor concentration levels.

(Record citations omitted.) Based upon this reasoning, the Director asserts that 19 CSR 25-30.051 cannot be interpreted to require the use of three standard solutions for each calibration check.

Point II claims the trial “court applied the wrong version of the [DHSS] regulation governing the verification and calibration of breath test devices” because “the regulation is procedural and is to be given retroactive application[,]” and “the version ․ in effect at the time of [Driver's] trial clearly stated that only a single concentration level of the standard simulator solution” was necessary in checking the breath analyzer's calibration.

Both of the Director's points are encompassed by the recent holding in Stiers. Contrary to Point I, Stiers holds that the 2012 version of 19 CSR 25-30.051(2) required that breath analyzers be calibrated with all three solutions: .10, .08, and .04%. Stiers, at *3-4. Point I is denied.

Stiers also held, in contravention of the Director's second point, that the version of 19 CSR 25.30.051 to be applied was that in effect at the time the breath test was given, not that in effect at the time of trial. Id. at *7. Point II is also denied, and the judgment of the trial court is affirmed.

FOOTNOTES

1.   Unless otherwise indicated, all statutory references are to RSMo Cum. Supp. 2009. All references to the Code of State Regulations (“CSR”) are to Mo. Code Regs. Ann. (2014).

2.   No transcript has been filed in the instant appeal. The docket entries concerning the hearings held on March 21 and June 6, 2014 do not state what exhibit(s) were offered or admitted. The amended judgment discussed, infra, does not identify exhibits or recite facts about the breath test or the machine used to obtain it. Director's statement of facts relies upon docket entries and pleadings in the legal file, as well as “Exhibit A” purporting to be records from the Director's department that they have deposited with this court. Generally, “[t]his court will not convict the trial court of error when we do not know what evidence was before it.” In re Carl McDonald Revocable Trust Dated Oct. 1, 1979, 942 S.W.2d 926, 933 (Mo. App. S.D. 1997). We do so here because Driver makes no objection to Director's deposit of Exhibit A and presumably cites it himself as he refers to “exhibits” with no specification of something different than that cited by the Director. Driver also affirmatively states that the statement of facts in Director's brief is correct regarding the probable cause statement and the officer's report related to the case. Finally, Driver agrees with Director's summary of “[t]he procedural aspects of the case[.]” While the utilization of Rule 81.13 -- which provides for an “Agreed Statement as the Record on Appeal” -- would have made the underlying facts more readily apparent, we will review the appeal based upon the facts that may be gleaned from the admissions made by Driver in his brief, and a maintenance report included in Exhibit A. Cf. C.S., Jr. v. L.K.M., 73 S.W.3d 852, 854 (Mo. App. S.D. 2002) (where no transcript was filed, but the legal file included pleadings with exhibits, and the briefs contained statements of fact, the court “glean[ed] the facts from admissions found in or resulting from” those materials), and In re Trust of Nitsche, 46 S.W.3d 682, 684 (Mo. App. S.D. 2001) (documents not a part of the record are not considered on review but, “a statement of fact asserted in one party's brief and conceded as true in the opposing party's brief may be considered as though it appears in the record”). All rule references are to Missouri Court Rules (2014).

3.   “Maintenance checks are the standardized and prescribed procedures used to determine that a breath analyzer is functioning properly and is operating in accordance with the operational procedures established by [DHSS.]” 19 CSR 25-30.011(2)(F).

PER CURIAM.