# In the Missouri Court of Appeals **Eastern District** DIVISION ONE MATTHEW S. BARTHOLOMEW, ) No. ED101750 and No. ED101751 ) Respondent, ) Appeal from the Circuit Court ) of St. Charles County vs. ) ) DIRECTOR OF REVENUE, STATE ) Hon. Matthew Thornhill OF MISSOURI, ) ) Appellant. ) FILED: May 26, 2015 The Director of Revenue of the State of Missouri (“Director”) appeals from the judgments of the trial court that ordered the Director to remove th e administrative-alcohol suspension from Matthew Bartholomew’s (“Driver”) driving record and to reinstate Driver’s driving privileges. 1 We reverse and remand. On October 1, 2012, Sergeant Terry Potter (“Se rgeant Potter”) of the Missouri Highway patrol observed a vehicle exceeding the posted speed limit and initiated a traffic stop of the car, which was operated by Driver. Sergeant Potter noticed a strong smell of alcohol coming from the car, and asked Driver if he had been drinking . Driver told Sergeant Potter that he had a few drinks about an hour prior to the traffic stop. Driv er agreed to submit to field sobriety tests. Segeant Potter administered several tests, incl uding the horizontal gaze nystagmus (“HGN”) test,

1 Director had suspended Driver’s driving privileges and regular driver’s license and also had disqualified his commercial driver’s license (“CDL”). Director appeals the two separate judgments of the trial court that: (1) ordered Director to remove the suspension from Driver’s record and reinstate his driving privileges; and (2) ordered Director to reinstate his CDL privileges. The separate appeals have been consolidated into one matter on appeal upon motion by Director, as the trial court’s reason ing and judgment were identical in the two cases.2 the walk-and-turn test, and the one-leg-stand te st. Driver exhibited 6 out of 6 signs of intoxication on the HGN test, 4 out of 8 signs of intoxication on th e walk-and-turn test, and 2 out of 4 signs of intoxication on the one-leg-stand test . Sergeant Potter asked Dr iver to rate his own intoxication on a scale of 1 to 10, to which Driver replied he was a 5 or 6. Sergeant Potter arrested Dr iver and conveyed him to Troop C Headquarters, where he informed Driver of Missouri’s Implied Consent Law and requested a breath sample. Driver complied, and the breathalyzer indicated that he had a blood alcohol content (“BAC”) of 0.098%. Trooper J.T. Hedrick had performed mainte nance on the breathalyzer used by Driver on September 7, 2012. Trooper Hedrick’s maintenance report reflected that the breathalyzer was performing within established limits. Director suspended Driver’s dr iving privileges after an ad ministrative hearing. As a consequence of the administrative suspension, Driver’s commercial driv er’s license (“CDL”) was disqualified for one year. Driver filed petitions for a trial de novo from the administrative suspension of his driving privileges and for review of the disqualif ication of his CDL, both in the Circuit Court of St. Ch arles County, Missouri. The matter was tried in the circ uit court on February 21, 2014. The principal issue at trial was the admission of Director’s Exhibit A, wh ich included Sergeant Potter’s alcohol influence report, the breathalyzer maintenance report and supporting documents. Driver made a foundational objection to the admission of Exhibit A. The trial court admitted Exhibit A into evidence with the exception of the breathalyzer test result, whic h it deferred ruling on. Driver argued that the maintenance of the breathalyzer should have been done in accordance with the newly amended Department of Health & Senior Services (“DHSS”) regulations that were in effect at the time of trial, whic h apparently required confirmati on testing at three standards, 0.103 percent, 0.08 percent, and 0.04 perc ent. Director argued that the DHSS regulations that were in effect at the time that of the maintenance of th e breathalyzer governed. Th e trial court expressed its belief, without ruling at that time, that if standards become st ricter in favor of a defendant between arrest and the date of trial that th e stricter standards w ould apply retroactively. The trial court issued judgments on March 25, 2014 in both the suspension of driving privileges and disqualification of CDL cases. In both judgments, it found that Driver objected to the admission of the breathalyzer results on the gr ound that Director failed to present evidence of compliance with the appropriate state regulations . The trial court sust ained Driver’s objection, finding that the law in effect at the time of the hearing “mandated that the breath analyzer be calibrated at all three values” and that Director merely presented evidence that a single standard simulator solution was used for a single value, 0. 10 percent, and presented no evidence of the use any other standard simulator solutions. The tr ial court found that Director failed to present sufficient credible evidence of compliance w ith the state regulations and with §577.020.3 RSMo (Cum. Supp. 2011). 2 The trial court found that Director failed to meet the burden of providing sufficient credible evidence that Driver drove with a BAC at or above 0.08 percent. It specifically did not address the issue of probable cause. 3 The trial court found in favor of Driver and ordered Director to remove immediately the administrative- alcohol suspension from Driver’s driving record and to reinstate his driving priv ileges to the extent otherwise allowable by law. Director filed a Motion for a New Trial on April 24, 2014 in which the Director argued that the regulations in effect at the time of the maintenance of the breathalyzer on September 7, 2012, applied, and that that version of the re gulations controlled pursuant to 19 CSR 25-

2 Unless noted otherwise, all further statutory citations are to RSMo (Cum. Supp. 2011). 3 In the first paragraph of its judgment the trial court stated th at “the parties stipulated as to probable cause” but later stated that because it found in favor of Driver on the issue of his BAC, it “n eed not address [Director]’s burden on the issue of probable cause. Nothing in the record shows th at the parties did stipulate as to probable cause, and that issue was not reached by the trial court.4 30.051(8) (2012). The trial court held a hearing on this motion, wherein Driver and Director recapitulated the arguments that each made at trial regarding the applicable regulations and standards. It found that DHSS passed new regul ations effective December 30, 2012 that required calibration of breath testing inst ruments using three simulated solutions instead of merely one, and that this was a positive change in the law on calibration of breath testing instruments. It further found that due process required that Driv er receive the benefit of the positive change, “even though he was arrested and provided a brea th sample prior the date the new regulations came into effect.” Accordingly, the trial court denied Director’s motion. Director now appeals from the trial court’s judgments of March 25, 2014 and the appeals were consolidated in this Court. 4 In her sole point relied on Director contends that the trial court misapplied the law in finding that maintenance on the breathalyzer was not performed in compliance with DHSS regulations in effect at the time of trial b ecause DHSS regulations provide that maintenance reports shall be considered valid if performed in compliance with the regulations in effect at the time that the maintenance actually was done. Dir ector argues that the maintenance report of Trooper Hedrick was completed in compliance w ith the regulations in effect when the maintenance was performed, including the regulati on specifying that only one simulator solution need be used when performing a calibration check of the breath analyzer.

4 I t is helpful to have a chronology of the many relevant dates and events involved in this case: July 30 2004 - effective date of 19 CSR 25-30.051 (single simulator solution) September 7, 2012 - breathalyzer maintenance and report (single simulator solution) October 1, 2012 - arrest of Bartholomew December 30, 2012 - effective date of regulation that changed language to “and” apparently requiring three simulator solutions for maintenance. February 21, 2014- trial February 28, 2014 - effective date of emergency regula tion that changed language to “or” clearly requiring only a single simulation solution for maintenance. March 25, 2014 - judgment.5 We review a trial court’s judgment rein stating driving privileges following an administrative suspension or revocation under the standard of Mur phy v. Carron. 536 S.W.2d 30, 32 (Mo. banc 1976). White v. Director of Revenue, 321 S.W.3d 298, 307-08 (Mo. banc 2010). This Court will affirm the decision of the trial court if it is suppor ted by substantial evidence, it is not against the weight of the evidence, and it does not erroneously or declare or apply the law. Id. We review declarations of law de novo . Moore v. Director of Revenue, 351 S.W.3d 286, 687 (Mo. App. 2011). It is the Director’s burden to establish a prima facie case for suspensi on of a driver’s license by introducing eviden ce that at the time of a driver’s arrest: (1) there was probable cause for arresting the driver for violating an alc ohol-related offense; a nd (2) the driver’s BAC exceeded the legal limit of 0.08 percent. §302.505.1; White, 321 S.W.3d at 309 n.11. It is the Director’s burden to establish a basis for the revocation or suspension by a preponderance of the evidence. §302.535.1; Irwin v. Director of Revenue, 365 S.W.3d 266, 268 (Mo. App. 2012). The Director may introduce evidence of a breat halyzer test to establish that a driver’s BAC exceeded the legal limit. Irwin, 365 S.W.3d at 268-69. To lay a foundation for admission of the breathalyzer test into evid ence, the Director must establish that the test was performed: (1) using the approved techniques and methods of the Division of Health; (2) by an operator holding a valid permit; (3) on equipment and devices approved by the Division of Health. Id. at 269. The question of law at issue is whether, under the applicable regulati ons, the breathalyzer had to be tested one time at one concentration or at three concentrations . Administrative rules and regulations are interpreted und er the same principles of cons truction as statutes. Beverly Enterprises-Missouri, Inc. v. De partment of Social Services, Division of Medical Services, 3496 S.W.3d 337, 352 (Mo. App. 2008); Trumble v. Dir ector of Revenue, 985 S.W.2d 815, 819 (Mo. App. 1998). Words are given their ordinary, plain meaning. Beverl y Enterprises, 349 S.W.3d at 352. Statutory interpretation is a question of law subject to de novo review. Bender v. Director of Revenue, 320 S.W.3d 167, 169 (Mo. App. 2010). For breathalyzer results to be admissible, the machine used to measure the level of alcohol has to be properly mainta ined and tested. At the time of Driver’s arrest on October 1, 2012, the pertinent regulation was 19 CS R 25-30.051 (2004), which provided that: (1) Standard simulator solutions, used to verify and calibrate evidential breath analyzers at the 0.10% or 0.100% level, shall be solutions from approved suppliers. (2) Standard simulator solutions, used to verify and calibrate evidential breath analyzers at the 0.04% or 0.040% level, shall be solutions from approved suppliers.

... (4) Maintenance reports using Intoximeter standard simulation solution completed prior to the effective date of this rule sh all be considered valid if the maintenance report was completed in compliance with the rules in effect at the time the maintenance was conducted. Trooper Hedrick had tested the br eathalyzer used on Driver on September 7, 2012, using a single simulator solution as required by the regulation then in force. By the time that Driver went to tria l on February 21, 2014, 19 CSR 25-30.051 had been amended twice: on November 30, 2012 (eff ective December 30, 2012) and on January 29, 2014 (effective February 28, 2014). The regulation in e ffect at the time of tria l provided in relevant part that: (1) Standards used for the purpose of ve rifying and calibrati ng breath analyzers shall consist of standard simulator solu tions or compressed ethanol-gas standard mixtures.7 (2) Standard simulator solutions, used to verify and calibrate evidential breath analyzers, shall be solutions from appr oved suppliers. The standard simulator solutions used shall have a vapor concentr ation within five percent (5%) of the following values: (A) 0.10%; (B) 0.08%; and (C) 0.04%.

... (8) Maintenance reports completed prior to th e effective date of this rule shall be considered valid under this rule if th e maintenance report was completed in compliance with the rules in effect at the time the maintenance was conducted. The regulation in effect at the time of Driver’s trial on February 21, 2014, included the savings clause provision in 19 CSR 25-30.051(8) (2012). See id. 19 CSR 25-30.051(8) (2012) provides that a maintenance report done prior to the date that the current regulation went into effect, December 30, 2012, “shall be considered va lid under this rule” if it complied with the rules in place at when the maintenance actually was performed. In th is situation, that was September 7, 2012. Trooper Hedrick’s maintenance re port, which was part of State’s Exhibit A, complied with the rules in place on Septembe r 7, 2012, and should have been admitted into evidence. The trial court excluded Trooper Hedrick’s ma intenance report, relying on United States v. Schooner Peggy, 5 U.S. 103, 110, 2 L.Ed. 49 (1801), a case that is more than 200 years old and that preceded the establishment of admini strative regulatory agencies and administrative rules and regulations by the fede ral government by more than 75 y ears. The trial court’s ruling was based on its view that the administrative re vocation of Driver’s driving privileges was “a quasi-criminal proceeding” and that “the crimin al logic and how we approach those criminal cases” applied to the administra tive revocation. The trial court is incorrect. Administrative revocation of a driver’s license is not punishme nt; it cannot create the possibility of double8 jeopardy. State v. Kampe, 926 S.W.2d 942, 943 (M o. App. 1996). Administrative suspensions and revocations are civil proceedings, and the rule s of criminal procedure do not apply. Geist v. Director of Revenue, 179 S.W .3d 91, 394 (Mo. App. 2005). Opera ting a motor vehicle while intoxicated gives rise to two separate and independent procee dings; one is civil and one is criminal, and the outcome of one proceeding has no effect or consequence on the other. State v. Brightman. 388 S.W.3d 192, 197-98 (Mo. App. 2012). Th e issuance of a driv er’s license “is no more than a personal privilege[.]” Sparling v. Director of Revenue, 52 S.W.3d 11, 13 (Mo. App. 2001). This Court has addressed essentially the same issue on at least two occasions. In both Salamone v. Director of Re venue, 991 S.W.2d 749 (Mo. App. 1999) and Hunt v. Director of Revenue, 10 S.W.3d 52 (Mo. App. 1999), the trial cour ts excluded the maintenance reports for breathalyzers upon objection by the petitioner-drivers in trials de novo that the records failed to contain the certificate of anal ysis for the simulator solutions as required by the relevant regulation adopted in March 1996. The breathalyzer s in those cases were tested on December 27, 1995 and on July 13, 1995 respectively. Sala mone, 991S.W.2d at 751; Hunt, 10 S.W.3d at 150. The trial courts reinstated the driving priv ileges in both cases. Salamone, 991S.W.2d at 750; Hunt, 10 S.W.3d at 147. The March 1996 regul ation did not apparently have a savings clause, but the regulation in eff ect at the time of the trial, 19 CSR 25-30.051(4) (1997), provided in pertinent part that: Maintenance reports completed on or after March 26, 1996, and prior to the effective date of this rule [September 1, 1997] shall be considered valid under this rule if a certificate of analysis was supplied with the simulator solution. Maintenance reports complete d prior to March 26, 1996, sh all be considered valid under this rule if done in compliance with the rules in effect at the time the maintenance report was conducted.9 We held that the regulation in effect at the time of the trials, which was effective as of September 1, 1997, superseded the regulation th at took effect in March 1996, a nd that the savings clause of 19 CSR 25-30.051(4) applied, making breathalyzer ma intenance reports completed before March 26, 1996, valid if they complied with the rules in effect at the time that the maintenance report was made. Salamone, 991S.W.2d at 751; Hunt, 10 S.W.3d at 150. In both cases this Court held that the trial court erred in excluding the main tenance reports and reversed and remanded for further proceedings. Salamone, 991 S.W.2d at 751; Hunt, 10 S.W.3d at 150. The trial court misapplied the law by finding that the maintenance done on the breathalyzer by Trooper Hedrick on September 7, 2012, was not done in compliance with DHSS regulations in effect at the time of trial because 19 CSR 25-30.051(8) (2012) applied. Accordingly, Trooper Hedrick’s maintenance re port of September 7, 2012, was valid because it was completed in compliance with the rules in effect on that date. Driver argues that the savings clause of 19 CSR 25-30.051(8) (2012) does not apply because the regulation in effect on Sept ember 7, 2012, 19 CSR 25-30.051 (2004) was ambiguous in that it was not clear from that version of th e regulation whether the police officer performing the maintenance test had to run the standard simulation solution at the 0.10 percent level or the 0.04 percent level, or at both levels . The sole basis for this argu ment is that the regulation was amended on November 30, 2012 5 and had the following language: (2) Standard simulator solutions, used to verify and calibrate evidential breath analyzers, shall be solutions from appr oved suppliers. The standard simulator solutions used shall have a vapor concentr ation within five percent (5%) of the following values: (A) 0.10%; (B) 0.08%; and (C) 0.04%.

5 The effective date of that regulation was December 30, 2012. That version of the regulation was in turn amended on January 29, 2014, effective on February 28.2014, to change “and” to “or.”10 Driver argues that this change adding a third standard and the c onjunction “and” must have been for the purpose of removing the alleged ambiguity about testing. This ar gument has no merit. There is no other support for this allegation of ambiguity other th an a change was made to the regulation. No Missouri appellate court ever held it to be ambi guous in the approximately eight years that the 2004 version of 19 CSR 25- 30.051 was in effect. Point sustained. 6 The judgments of the trial court are revers ed and remanded for further proceedings in accordance with this opinion. 7

_____________________________________ CLIFFORD H. AHRENS, Judge Lawrence E. Mooney, P.J., concurs. Lisa Van Amburg, J., concurs.

6 We need not address the issue of the meaning and effect of th e word “and” in 19 CSR 25-30.051(2) , which was effective from December 30 2012 to Febr uary 27, 2014, to resolve the question ra ised in the present case. That issue is currently pending before the Missouri Supreme Court in Stiers v. Director of Revenue, SC94840. 7 The trial court did not rule on the issue of whether there was probable cause, and accordingly we do not address that issue.