1 MICHAEL RAY SLEDD, ) ) Petitioner-Respondent, ) ) v. ) No. SD34272 ) DIRECTOR OF REVENUE, ) Filed: Nov. 29, 2016 ) Respondent-Appellant. )
APPEAL FROM THE CIRCUIT COURT OF ST. CLAIR COUNTY Honorable Jerry J. Rellihan REVERSED AND REMANDED WITH INSTRUCTIONS The Director of Revenue (“Director”) appe als the judgment setti ng aside her suspension of Michael Ray Sledd’s (“Driver ”) driving privileges after Dr iver was arrested in August 2014 for driving while intoxicated with a blood-alcoho l concentration (“BAC”) in excess of .08%. See sections 302.505 and 302.535. 1 The trial court set aside th e suspension on the ground that Director failed to demonstrate that the test of Driver’s breath was performed on a breath analyzer machine that met the required standards.

1 All statutory references are to RSMo Cum. Supp. 2013.2 Director claims the ruling was erroneous becau se the simulator solution used to calibrate the breath analyzer (“the Simulator”) had been certified as required “at the time of maintenance, and [19 CSR 25-30.051(4)] did not re quire [Director] to show that an additional certification occurred after the date the maintenance check wa s performed.” Finding merit in this claim, we reverse the judgment of the circ uit court and remand the matter for further proceedings consistent with this opinion. Applicable Principles of Review and Governing Law “In appeals from a court-tried civil case, the trial court’s judgment will be affirmed unless there is no substantial ev idence 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). “The evidence an d all reasonable inferences ther efrom are viewed in the light most favorable to the judgment and all contra ry evidence and inferences are disregarded.” O’Rourke v. Dir. of Revenue , 409 S.W.3d 443, 446 (Mo. App. E.D. 2013). In contrast to that deference in fact-finding, we re view the trial court’s interpreta tion of statutes and regulations de

novo . Stiers v. Dir. of Revenue , 477 S.W.3d 611, 614 (Mo. banc 2016). To suspend a license, Director must establish “that at the time of a driver’s arrest: (1) there was probable cause for arresting the driver fo r violating an alcohol-related offense; and (2) the driver’s BAC exceeded the legal limit of 0.08 percent.” McGough v. Dir. of Revenue , 462 S.W.3d 459, 462 (Mo. App. E.D. 2015); see also section 302.505.1. Proof that the BAC exceeded the legal limit may be in the form of the results of a breathalyzer test if the proper foundation for the result is established. See Irwin v. Dir. of Revenue , 365 S.W.3d 266, 268-69 (Mo. App. E.D. 2012). “Foundational requirements for the admission of breath tests are only an3 issue in the event that [as occurred here] a timely objection is made.” Courtney v. Dir. of
Revenue , 477 S.W.3d 659, 667 (M o. App. W.D. 2015). To establish a prima facie foundation for admission of breathalyzer test results, Director must demonstrate the test was performed: (1) by following the approved techniques and methods of DHSS [Departm ent of Health and Senior Services]; (2) by an operator holding a valid permit; (3) on equipment and devices approved by DHSS. O’Rourke , 409 S.W.3d at 447. The “rule defin[ing] the standa rd simulator solutions . . . to be used in verifying and calibrating breath analyzers, as well as the a nnual checks required on simulators used in conjunction with the standard simulator solution[,]” is: Any breath alcohol simulator used in the verification or calibration of evidential breath analyzers with the standard simulator solutions referred to in . . . this rule shall be certified against a National Ins titute of Standards and Technology (NIST) traceable reference thermometer or th ermocouple between January 1, 2013, and December 31, 2013, and annually thereafter. 19 C.S.R. 25-30.051(4). Evidentiary and Procedural Background At the outset of the September 28, 2015 bench tr ial, Director’s counsel requested findings of fact as to witness credibil ity and whether sufficient eviden ce supported that “[Driver] was driving with a blood alcohol conten t of eight hundredths of one percent or more by weight.” Counsel for Director also provide d the trial court with a proposed form to use in making its findings. Highway Patrol Trooper William M. Bush pr ovided the following testimony. On August 13, 2014 he stopped Driver’s vehicle for speeding, and he noticed that Driver’s speech was “slightly slurred[,]” “his eyes were bloodshot and watery look ing[,]” and Driver had “a moderate smell of alcohol about his person.” The trooper arrested Driver for driving while intoxicated4 after his performance on a gaze nystagmus test indicat ed that he “was intoxicated.” After Driver was transported to jail, Driver took a breath test on a particular “DataMaster” breath analyzer machine identified by a serial number (“the breath machine”). 2 When counsel for Director asked the troope r to testify about Driver’s “breath test result[,]” counsel for Driver objected that Di rector had not “laid a sufficient foundation under 19 CSR 25-30.051 as it relates to th e testing of the thermostat[ 3 ] on the simulator” (“the foundation objection”). The trooper was perm itted to testify about the result of the test, subject to an eventual ruling by the trial court on the foundatio n objection. Trooper Bush’s written report was received into evidence, but its reflection of an “alleged blood al cohol readout from the [breath machine]” was also subject to a ruling on the foundati on objection. Maintenance reports on the breath machin e resulting from inspections performed on August 12, 2014—the day before Driver’s arrest—and September 13, 2014 (“the 2014 maintenance inspections”) were received in to evidence with “[n]o objection.” The 2014 maintenance inspections reflected the same se rial number and “EXP. DATE” of December 20, 2014 for the Simulator. Additional records receiv ed into evidence indicated that the Simulator was itself tested using a NIST traceable th ermometer during a December 20, 2013 simulator certification. That particular ce rtification reflected an “[e]xpir[a tion]” date for the Simulator of December 20, 2014. Highway Patrol Trooper Joshua White pr ovided the following testimony. He began doing maintenance checks on breath analyzers in St. Clair County in December 2014 after another trooper had resigned from the position. When Trooper White move d into the St. Clair

2 Following an administrative hearing, Director suspended Driver’s license based upon findings concerning this incident. 3 We have been unable to find any reference to “thermostat” in either the regulation cited by Driver or in the record on appeal other than its use by Driver’s counsel.5 position, he brought his own simulator with him, and he sent the Simu lator to the Patr ol’s facility in Jefferson City. Trooper White did not know when the Simulator was last used in a maintenance check or whether it had been certif ied after the last time it was used in a maintenance check. After Trooper White’s testimony, counsel for Di rector reoffered Driver’s breath-test result. Driver’s counsel made “the same obj ection[,]” adding that “[ p]ursuant to 19 CSR 25- 30.051, the thermostat on the [S]imulator has to be ch ecked on an annual basis. Specifically, that section says that [the “thermostat” on a simula tor] has to be checked up against a NIST traceable thermometer between January 1, 2013, and D ecember 31, 2013, and annually thereafter.” Driver’s counsel pointed out that while the 2014 maintenance inspections evidenced that the “thermostat” for the Simulator had been checked in 2013, “there is no evidence that it was ever checked in 2014.” Director’s counsel argued th at the December 2013 certification was sufficient to cover the Simulator “ up to December 20[,]” 2014. The trial court took the objection under advisement and permitted the parties an opportunity to brief whether the December 2013 certification was good “from January 1, 2014, up and until . . . the date of [D river’s] arrest[.]” The form judgment subsequently entered allowed the trial court to sele ct particular preprinted findi ngs and, in some instances, to supplement those findings with written entries on bl ank lines. Room for such additional findings was available under the categories of “Credibility[,]” “Probable Cause[,]” and “BAC[.]” No findings as to credibility or pr obable cause were either checked or written. Under “BAC,” the trial court checked the pre-printed finding that “[t]here was an insufficient foundation for6 admission of the test results” and provided additional findings via handwritten text. 4 Analysis Director maintains that the trial “court erre d as a matter of law in reinstating [Driver]’s driving privilege on the ground that the test result was inadmissible” because “the 2013 simulator certification was in effect and had not expired at the time of the maintenance check” on the breath machine. Director argues that “the only relevant simulator certification for purposes of admissibility is the certification in effect at the time of the maintenance check” and that to construe 19 C.S.R. 25-30.051(4) otherwise w ould be “absurd” because it would mean that, without regard to when a trial was held, a simula tor would need to be ce rtified within each and

4 The following is an image of that handwritten text.

Director maintains that the handwritten text states: DOR failed to meet its burden that it followed the approved techniques & methods of DHSS – “Any Breath Alcohol Simulator used in the verification or calibration of evidential breath analyzers with standard simulator solutions referred to in sections (2) & (3) of this rule shall be certified against a NIST traceable reference ther mometer or thermocouple between January 1, 2013, and December 31, 2013, and annually thereafter,” 19 C.S.R. 25-30.051(4). Driver does not mention the handwritten entry, and there is no text following the heading “Statement of Facts” in Driver’s brief. The brief simply argues that the judgment should be upheld because “there was a lack of compliance with 19 CSR 25-30.051(4).” We do not decide whether Director’s suggested quotation is a correct recitation of the handwritten text. The handwriting does refer to 19 C.S.R. 25-30.051(4)’s requirement th at the simulator be certified between January 1, 2013 and December 31, 2013 and annually thereafter. Given Dr iver’s objection to the admission of the breath test result based upon a claim that the Simulato r had not been certified in 20 14, the trial court’s request for briefing on the issue of whether the December 2013 certification was good “from January 1, 2014, up and until . . . the date of [Driver’s] arrest[,]” and the fact that the trial court made no other findings as requested by Director under Rule 73.01(c), it is clear that the basis for the ju dgment was the trial court’s finding that the Simulator’s December 2013 certification was insuffici ent to support the admission of the br eath test result. Missouri Court Rules (2016).7 every calendar year between the maintenance chec k preceding a driver’s breath test and the date of trial. We agree. “The primary rule of construction is to ascer tain the agency’s intent from the language used and give effect to that intent, while consid ering the words used in their plain and ordinary meaning.” Rundell v. Dir. of Revenue , 487 S.W.3d 496, 500 (Mo. App. E.D. 2016). Title 19 C.S.R. 25-30.051 does not define the term “annually,” and no definition of the term is included in other administrative regulations relating to the determin ation of blood alcohol content. See 19 C.S.R. 25-30.011. “In the absence of a definition in the regulation, the words will be given their plain and ordinary meaning as derived from a dictionary.” Rundell , 487 S.W.3d at 500. Director compares the instant case to Sellenriek v. Dir. of Revenue , 826 S.W.2d 338, 340-41 (Mo. banc 1992) (construing a former re gulation set out at 19 C.S.R. 20-30.031), in which our high court stated that “the purpose of the maintenance ch eck requirement is to ensure the reliability of a particular test result” and the critical ma intenance check was the one “done within 35 days prior to the test sought to be admitted.” Director also points out the Eastern District’s holding in Kern v. Dir. of Revenue , 936 S.W.2d 860, 862 (Mo. A pp. E.D. 1997), that evidence of a maintenance check performed after a certain breath test was taken may go to the weight the fact-finder may give the test result, but evidence of a later maintenance check is not a required part of the foundation necessary to s upport the admission of the breath test. The reasoning of these cases also supported two more recent decisions addressing simulator certifications. See Blackwell v. Dir. of Revenue , 489 S.W.3d 879, 883-84 (Mo. App. W.D. 2016), and Harrell v. Dir. of Revenue , 488 S.W.3d 202, 207 (Mo. App. W.D. 2016).
In Harrell , a simulator was certified in October 2 013, a maintenance check of the breath analyzer was done on April 1, 2014, and that breath analyzer was used to ad minister a breath test8 on April 6, 2014. 488 S.W.3d at 204-05. After noting that literal complian ce with the regulation
was necessary, id. at 207, the Western District reject ed the notion “that literal compliance requires that this Court find that proof of certification must be o ffered for every year a simulator is in service regardless of when it was used to ma intain the applicable breath analyzer or when a BAC test was administered.” Id

. at 207-08. The case was then remanded for further factual determinations relating to the accuracy of th e BAC test -- not its admissibility -- based on evidence of “the discontinued use of the [s]imula tor and lack of subseque nt certification[.]” Id.
at 208. 5 The requirement of simulator certif ications was addressed again in Blackwell (also without any express construction of “annually,” bu t with a consideration of what constituted the foundation necessary to demonstrate an “up-to-d ate” simulator). 489 S.W.3d at 882. The driver
in Blackwell objected to the admission of a June 22, 2014 breath test taken after a June 1, 2014 maintenance check and an October 2013 simula tor certification on the ground that there was no evidence that the simulator was subsequently certified in 2014. Id. The court considered the driver’s objection “[i]n other words” to be that “Missouri regulations require up-to-date certification records for a simulator at the time of trial, regardless of when the simulator was used to calibrate a breath analyzer or when the applicable test was taken.” Id. The reasoning of Sellenriek and Kern , that what matters is the accuracy of the machine at the time of testing, remains good law. The language of 19 CSR 25- 30.51(4) does not expressly re quire annual certif ication beyond the date of a BAC test. Nor should Carter [ v. Dir. of Revenue , 454 S.W.3d 444, 448 (Mo. App. W.D. 2015) (requiring proof an initial certi fication within 2013 as the regulation expressly states in connecti on with a breath test admini stered in June 2013)] be read so broad as to require post-BAC te st certification to es tablish foundation for the admissibility of a BAC test result.

5 Harrell did not contain any discussion of the meaning of “annually.”9 Id. at 885. Blackwell also resulted in a remand for th e admission of the BAC result and a subsequent determination by the trial court of wh ether the result of that test was reliable. Id. Driver attempts to distinguish Harrell and Blackwell on the basis that “the exact date that [the Simulator] was taken out of service” is unkn own. We fail to discern any relevance in the claimed distinction as 19 C.S.R. 25-30.051(4) does not contain any cer tification requirement related to the removal of a simulator from service. Driver also insists that “annually as us ed in 19 C.S.R. 25-30.051(4) means once per calendar year.” The suggested interpretation wo uld allow a simulator to go uncertified for a period of 728 days. 6 Such an outcome would undercut the broader purpose of ensuring the reliability of a breath analyzer at the time the breath test is performed. See Sellenriek , 826 S.W.2d at 340. Driver’s citation to dictionary definitions of “annual[,]” the general statutory definition of “ year ” contained in section 1.020(11), and a case from the Supreme Court of Wyoming are neither dispositive nor persuasive. Driver quotes a definition of “annual” from 116 Black’s Law Dictionary (Revised 4 th ed. 1968) that provides multiple meanings. One such meaning is something “occurring within the space of a year[.]” Interpreting 19 C.S.R. 25-30.051( 4) to require a certifi cation of a simulator within the space of one year from the date of it s previous certification would be in conformity

6 In applying Driver’s theory, a simulator that was certifie d at the first opportunity in a given year, say January 1, 2014, would not require certification until the last opportunity of the next calendar year, January 1, 2015; and a test of a driver’s breath on Decembe r 31, 2014, on a breath analy zer checked with that simula tor, would fall within this period. Driver also contends that “[t]he plain reading of the regulation could easily be construed as requiring [Director] to show that the [S]imulator was functioning pr operly both before and after the relevant breath test in order to lay the necessary foundation for admission[,]” but he cites no authority for this premise. Nor does he suggest restriction of the premise to the first certification of a simulator following a breath test, without which the illogical result would follow of requiring certification of a simulator throughout any and all years that a matter involving a simulator is pending in the courts, regardless of whether that simulator is being used at all. We reject such a broad and illogical result contrary to the purpose of the pertinent regulation. See Sellenriek , 826 S.W.2d at 340 (regarding the purpose of maintenance checks), and cf. Leiser v. City of Wildwood , 59 S.W.3d 597, 604 (Mo. App. E.D. 2001) (“[w]e will not interpret a statute or ordinan ce so as to reach an absurd result contrary to its clear purpose”).10 with that definition of “annual.” And while section 1.020(11) defines “ year ” as “a calendar year unless otherwise expressed,” this does not adva nce Driver’s argument because 19 C.S.R. 25- 30.051(4) does not use the word “y ear.” Finally, the holding in Johnson v. City of Laramie , 187 P.3d 355, 358 (Wyo. 2008), that “annually” in that st ate’s rules and regulations regarding breath analysis instruments means “once every cale ndar year” does “not c onstitute controlling precedent in Missouri courts.” Craft v. Philip Morris Cos., Inc. , 190 S.W.3d 368, 380 (Mo. App. E.D. 2005). We agree with our colleagues on the Western District th at the certification of the Simulator within 365 days of its previous certification satisfied the requirement under Missouri law that a simulator be cer tified “annually.” 19 C.S.R. 25-30.051(4). Director’s point is granted, and the judgment setting aside the susp ension of Driver’s license is reversed. We remand th e case, and the trial court is di rected to admit the breath test and then determine whether it finds the test result reliable. Cf. Blackwell , 489 S.W.3d at 885.

DON E. BURRELL, J. – OPINION AUTHOR JEFFREY W. BATES, P.J. – CONCURS MARY W. SHEFFIELD, C.J. – CONCURS