IN THE MISSOURI COURT OF APPEALS

WESTERN DISTRICT

CHELSEA F. WEISNER,

Respondent,

v.

DIRECTOR OF REVENUE,

Appellant.

)

)

)

)

)

)

)

WD81425

FILED: February 19, 2019

Appeal from the Circuit Court of Jackson County

The Honorable Susan E. Long, Judge

Before Division Two: Alok Ahuja, P.J., and Thomas H. Newton

and Mark D. Pfeiffer, JJ.

Respondent Chelsea Weisner was arrested for driving while intoxicated. 

After her blood alcohol concentration tested over the legal limit, the Director of 

Revenue suspended her driving privileges. Weisner filed a petition for a trial de 

novo in the Circuit Court of Jackson County. Following a bench trial, the circuit 

court held that the results of the breath test establishing Weisner’s blood alcohol 

concentration was inadmissible. The court excluded the test results because the 

breath test was conducted in a law enforcement patrol vehicle, which the court 

concluded was improper under the regulations promulgated by the Department of 

Health and Senior Services (“DHSS”). Because it found that there was no 

competent evidence establishing that Weisner had a blood alcohol concentration 

above the legal limit, the circuit court set aside the suspension of Weisner’s driving 

privileges. 

The Director of Revenue appeals. Consistent with our recent decision in 

Baker v. Director of Revenue, No. WD81325, 2019 WL 610383 (Mo. App. W.D. Feb. 
2

13, 2019), we hold that the circuit court erroneously determined that the results of 

Weisner’s breath test were inadmissible. We accordingly reverse the judgment of 

the circuit court, and remand the case for further proceedings consistent with this 

opinion.

Factual Background

At approximately 3:00 a.m. on July 30, 2016, Missouri State Highway Patrol 

Trooper Aaron Engelhart observed a car driven by Weisner on westbound Interstate 

70 in Jackson County. Weisner’s car failed to stay within a single lane, and Trooper 

Engelhart initiated a traffic stop. When Weisner was seated in his patrol car, 

Trooper Engelhart noted a strong odor of intoxicants coming from her breath, and 

that Weisner’s speech was slurred and rambling. Weisner admitted that she had 

consumed two alcoholic beverages, and that her last drink was approximately one 

hour earlier.

Weisner permitted Trooper Engelhart to perform the horizontal gaze 

nystagmus (“HGN”) test. Weisner exhibited six clues of intoxication on the HGN 

test. Trooper Engelhart then asked Weisner whether she would perform field 

sobriety tests, and she indicated that she would. When they exited Trooper 

Engelhart’s patrol vehicle to perform the tests, Weisner failed to follow Trooper 

Engelhart’s directions, and walked toward the traffic lanes of the highway. Because 

he feared that Weisner would not stop and would walk into traffic, Trooper 

Engelhart grabbed her arm and pulled her back onto the highway’s shoulder. 

Weisner stated that she would not return to Trooper Engelhart’s vehicle. He then 

placed her under arrest for driving while intoxicated.

Once they were again seated in Trooper Engelhart’s patrol vehicle, the 

Trooper read Weisner Missouri’s Implied Consent warning, and Weisner agreed to 

submit to a breath test. Trooper Engelhart performed a mouth check, and Weisner 

stated that she had nothing in her mouth. Trooper Engelhart then observed 
3

Weisner for twenty-four minutes, during which she did not smoke, vomit, or 

introduce anything into her mouth. Weisner then submitted a breath sample, 

which was tested using the Alco-Sensor IV with printer (“AS-IV-P”) breath 

analyzer. The breath testing occurred inside Trooper Engelhart’s patrol vehicle. 

The breath test result indicated that Weisner’s blood alcohol concentration was 

.104%.

The Director of Revenue suspended Weisner’s driving privileges pursuant to 

§ 302.505, RSMo. The suspension of Weisner’s driver’s license was upheld following 

an administrative hearing. She then petitioned the circuit court for a trial de novo 

pursuant to § 302.535, RSMo.

The circuit court conducted a bench trial on October 3, 2017. When the 

Director’s counsel asked Trooper Engelhart to testify concerning the results of the 

breath test, Weisner’s counsel objected that performing the breath test in Trooper 

Engelhart’s patrol vehicle violated the DHSS’s regulations. The court overruled the 

objection, although it indicated that it would reexamine the admissibility issue 

following the conclusion of the evidence, based on legal authorities submitted by the 

parties. Trooper Engelhart then testified that Weisner’s breath test indicated that 

she had a blood alcohol concentration of .104%.

The circuit court entered its judgment setting aside the suspension of 

Weisner’s driving privileges on December 18, 2017. The judgment found that the 

testing of Weisner’s breath occurred in an improper location, and that the breath 

test results were accordingly inadmissible. The court recognized that 19 C.S.R. 25-

30.050(2) specifies that “[b]reath analyzers are to be used within buildings or 

vehicles used for driving-while-intoxicated enforcement.” The circuit court 

interpreted this regulation as authorizing breath testing “in a building or in a 

vehicle specifically designed for its placement, e.g. a mobile van, ‘BAT’ [Breath 

Alcohol Testing] vehicle, etc.” The judgment also noted that the report form 
4

included in the DHSS’s regulations requires the device operator to certify that “[n]o 

radio transmission occurred inside the room where and when the test was being 

conducted.” 19 C.S.R. 25-3.060, Form #8 (emphasis added). The court concluded 

that “the Officer’s patrol car is not a room as required by the certification on [DHSS] 

Form 8.”

Given its exclusion of the breath test results, the circuit court concluded that 

the Director had failed to submit “admissible evidence of [Weisner] having provided 

a sample in excess of .08 BAC.” The court accordingly set aside the suspension of 

Weisner’s driving privileges.

The Director of Revenue appeals.1

Discussion

In order to sustain the suspension of an individual’s driving privileges under 

§ 302.505.1, RSMo, the Director of Revenue must prove at a trial de novo that 

“(1) the driver was arrested on probable cause for violating an alcohol-related 

offense; and (2) the driver's [blood alcohol concentration] exceeded the legal limit of 

.08 percent.” Shanks v. Dir. of Revenue, 534 S.W.3d 381, 386 (Mo. App. W.D. 2017) 

(citation and internal quotation marks omitted).

To establish that a driver’s [blood alcohol concentration] was over the 

legal limit, the Director may introduce evidence of the results of a 

breath analyzer test. 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 DHSS, by an operator holding 

a valid permit and on equipment and devices approved by the DHSS.

Roam v. Dir. of Revenue, 559 S.W.3d 1, 3 (Mo. App. E.D. 2018) (citing Gallagher v. 

Dir. of Revenue, 487 S.W.3d 24, 26 (Mo. App. E.D. 2016)); see also § 577.037, RSMo.

 

1 Weisner did not file a Respondent’s Brief. “‘A respondent is not required to 

file a brief, but without one, we must adjudicate the claim of error without benefit of 

whatever argument the respondent might have presented.” In the Interest of F.R.D., 481 

S.W.3d 32, 34 n.4 (Mo. App. W.D. 2015) (citations and internal quotation marks omitted).
5

The Director argues that the trial court erred in concluding that Weisner’s 

breath test results were inadmissible because the test was conducted in an 

improper location.

We recently addressed this precise issue in Baker v. Director of Revenue, No. 

WD81325, 2019 WL 610383 (Mo. App. W.D. Feb. 13, 2019). Baker held that a law 

enforcement officer’s patrol vehicle, which was used for general enforcement of 

traffic laws, constituted a “vehicle used for driving-while-intoxicated enforcement” 

within the meaning of 19 C.S.R. 25-30.050(2), and was therefore a permissible 

location for breath testing. Baker, 2018 WL 610383, at *3. In reaching this 

conclusion, Baker followed the Eastern District’s decision in Marquart v. Director of 

Revenue, 549 S.W.3d 56, 59–60 (Mo. App. E.D. 2018).

Baker also held that, although the DHSS’s reporting form required the test 

administrator to certify that “[n]o radio transmission occurred inside the room

where and when the test was being conducted,” 19 C.S.R. 25-30.060, Form #8

(emphasis added), this certification provision did not alter the locations in which 

breath testing could be conducted. Baker held that the certification provision could 

be harmonized with 19 C.S.R. 25-30.050(2), by interpreting the word “room” as used 

on Form #8 to refer to “a defined or enclosed space.” Baker, 2018 WL 610383, at *5. 

Even if the certification provision on Form #8 were interpreted to conflict with the 

19 C.S.R. 25-30.050(2), Baker held that the regulation must prevail over the 

certification section of the form, because the regulation was the more specific 

provision addressing the permissible locations for breath testing. Id., 2018 WL

610383, at *5–*6.

For the reasons more fully explained in the Baker decision, the circuit court 

erred in this case by excluding the breath test results on the basis that the breath 

test was conducted in an improper location. We accordingly reverse the judgment of 

the circuit court. Even if the breath test was conducted consistently with DHSS 
6

regulations and was therefore admissible, however, the circuit court as finder of fact 

was required to determine whether the breath test results, and the other evidence 

offered by the Director, were credible. See, e.g., Messner v. Dir. of Revenue, 469 

S.W.3d 476, 482–83 (Mo. App. W.D. 2015). Based on its conclusion that the breath 

test results were inadmissible, the circuit court did not assess the probative value or 

weight of the Director’s evidence. We remand the case to the circuit court for it to 

determine, as fact-finder, whether the Director has met his burden of proof to 

sustain the suspension of Baker’s driving privileges.2

Conclusion

The judgment of the circuit court is reversed, and the case is remanded for 

further proceedings consistent with this opinion.

___________________________________

Alok Ahuja, Judge

All concur.

 

2 In Baker, we reversed the judgment of the circuit court, and remanded the 

case for a new trial. In Baker, the circuit court excluded evidence of the breath test results 

during trial, and it was therefore unknown whether the driver would have made additional 

evidentiary objections, or would have presented additional evidence to rebut the breath test 

results, if the test results had been admitted. We therefore concluded that remand for a 

new trial was warranted. The procedural history of this case is different: here, the circuit 

court overruled Weisner’s objection during trial, and admitted the breath test results. 

Therefore, if Weisner had additional objections or evidence to present, she could—and 

should—have done so during the trial. A new trial is unwarranted in this case.