Opinion
No. WD 64264
June 30, 2006
Appeal from the Circuit Court of Benton County, Missouri, The Honorable Larry M. Burditt, Judge.
Before Smith, C.J., and Ulrich and Breckenridge, JJ.
The Director of Revenue (Director) appeals from the judgment of the Circuit Court of Benton County reinstating the driver's license of the respondent, Frankie Ray Vanderpool, which was suspended by the Director, pursuant to § 302.505.1, for driving with a blood alcohol concentration (BAC) of .08% or more.
All statutory references are to RSMo 2000, unless otherwise indicated.
The Director raises one point on appeal. She claims that the trial court erred in excluding the respondent's BAC test result (BTR), for the Director's failure to lay a proper foundation for its admission, resulting in her failing to make a prima facie case for suspending the respondent's driver's license, pursuant to § 302.505.1, for driving with a BAC of .08% or more, because it erroneously declared and applied the law as to the fifteen-minute observation period required by 19 C.S.R. 25-30.060(3) for admission of the respondent's BTR.
We affirm.
Facts
On September 7, 2003, Trooper Michael Fennewald of the Missouri State Highway Patrol observed the respondent operating his vehicle northbound on Route U in Mora, Pettis County, Missouri, with no headlights. In response, he activated his emergency lights and stopped the respondent's vehicle.
While questioning the respondent, Trooper Fennewald noticed an odor of alcohol coming from the respondent's vehicle. Trooper Fennewald questioned the respondent as to whether he had been drinking, and the respondent admitted that he had drunk too much to be driving. As a result of the odor of alcohol and respondent's admission, Trooper Fennewald administered a portable breath test (PBT), the horizontal gaze nystagmus test, the one-leg-stand test, the walk-and-turn test, and the Romberg test. The respondent failed the PBT, the one-leg-stand test, the walk-and-turn test, and the Romberg test.
At approximately 2:00 a.m., Trooper Fennewald placed the respondent under arrest for driving while intoxicated, handcuffed him, and placed him in the backseat, passenger side of his patrol car. Trooper Fennewald then moved the respondent's vehicle, secured it, and returned to the patrol car. The respondent had a passenger at the time of his arrest. Trooper Fennewald gave that passenger, who was not handcuffed or searched, a ride to the Benton County Sheriff's Department. During the drive to the Sheriff's Department, Trooper Fennewald engaged in conversation with both the respondent and his passenger.
Upon arriving at the Benton County Sheriff's Department, at approximately 2:37 a.m., Trooper Fennewald read the respondent the required implied consent warnings and set up the DataMaster he was going to use to test the respondent's breath, which required him to focus his attention on entering data into the machine for a period of at least two minutes. The breath test was administered at approximately 2:39 a.m. For the most part, during this time, Trooper Fennewald was not watching the respondent "face-to-face," but part of the time could see him, using his peripheral vision.
In accordance with § 302.515, the Director notified the respondent that his driver's license had been suspended, pursuant to § 302.505, for "driving a motor vehicle while the alcohol concentration in [his] blood, breath, or urine was eight-hundredths of one percent or more by weight." Pursuant to § 302.530, the respondent requested administrative review of his suspension, which was granted. The respondent's suspension was upheld. Hence, on November 19, 2003, pursuant to § 302.535.1, the respondent filed a petition for a trial de novo in the Circuit Court of Benton County. The petition was heard on March 22, 2004.
During the Director's evidence, the respondent made a continuing objection to the admission of his BTR on the basis that a proper foundation had not been laid by the Director for admission in that Trooper Fennewald did not comply with the fifteen-minute observation period, which is required by the Missouri Department of Health (MDH) guidelines for the administration of a BTR. The trial court reserved ruling on the respondent's objection to the admission of the respondent's BTR.
After having taken the respondent's case under advisement, the trial court entered its judgment, reinstating the respondent's driver's license, on May 26, 2004. In doing so, the trial court sustained the respondent's objection to the admission of the respondent's BTR, finding that Trooper Fennewald had not observed the respondent for fifteen minutes prior to the testing, as required, such that the Director had failed to lay a proper foundation for the admission of the respondent's BTR and, therefore, had failed to make a prima facie case for suspension.
This appeal follows.
Standard of Review
Our review of the trial court's judgment reinstating the driver's license of the respondent, after it had been suspended under § 302.505.1 for driving with a BAC of .08% or more, is the same as in any other judge-tried case and is governed by Murphy v. Carron , 536 S.W.2d 30, 32 (Mo. banc 1976). Walker v. Dir. of Revenue , 137 S.W.3d 444, 446 (Mo. banc 2004). As such, we must affirm the trial court's judgment, unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Id.
I.
In her sole point on appeal, the Director claims that the trial court erred in excluding the respondent's BTR for failing to lay a proper foundation for its admission, resulting in her failing to make a prima facie case for suspending the respondent's driver's license, pursuant to § 302.505.1, for driving with a BAC of .08% or more, because it erroneously declared and applied the law as to the fifteen-minute observation period required by 19 C.S.R. 25-30.060(3) for admission of the respondent's BTR to make a prima facie case for suspension or revocation, pursuant to § 302.505.1. Specifically, the Director claims that the trial court erroneously declared and applied the law, with respect to the necessary foundation for the admission of the appellant's BTR, in that, in refusing to admit the respondent's BTR, for the Director's failure to lay a proper foundation for its admission of the respondent's BTR, with respect to the requisite fifteen-minute observation period, it erroneously declared that, in order for the Director to satisfy her burden as to this foundational requirement for admission, Trooper Fennewald, the arresting officer and DataMaster operator, had to have observed the respondent "face-to-face" for the entire fifteen minutes, which the trial court found the Director's evidence did not establish.
Section 302.505.1 authorizes the Director to suspend or revoke a person's driver's license if she determines that the "person was arrested upon probable cause to believe such person was driving a motor vehicle while the alcohol concentration in the person's blood, breath, or urine was eight-hundredths of one percent or more by weight[.]" Upon being notified of a suspension or revocation by the Director, the driver may, in accordance with § 302.530.1, request a "review of the [Director's] determination at a hearing." The hearing is conducted by an examiner who is employed by the Department of Revenue. § 302.530.3.
The sole issue at the hearing shall be whether by a preponderance of the evidence the person was driving a vehicle pursuant to the circumstances set out in section 302.505. The burden of proof shall be on the state to adduce such evidence. If the department finds the affirmative of this issue, the suspension or revocation order shall be sustained. If the department finds the negative of the issue, the suspension or revocation order shall be rescinded.§ 302.530.4.
Here, upon receiving a notice of suspension from the Director, for driving with a BAC of .08% or more, the respondent requested a hearing before an examiner. After a hearing before an examiner, the respondent's suspension was upheld. In accordance with § 302.535.1, the respondent filed a petition for a trial de novo before the circuit court. At such trial, the burden of proof is upon the State. Id. The trial is to be "conducted pursuant to the Missouri rules of civil procedure and not as an appeal of an administrative decision pursuant to chapter 536, RSMo." Id. Accordingly, the issue presented at the § 302.535 trial de novo before the circuit court is the same issue that is presented in the § 302.530 hearing before the examiner such that for the Director to make a prima facie case for suspension or revocation, pursuant to § 302.505.1, she must establish, by a preponderance of the evidence, that: (1) there was probable cause to arrest the driver for driving a motor vehicle while the alcohol concentration in his blood, breath, or urine was eight-hundredths of one percent or more by weight; and (2) at the time of the arrest, the driver's BAC was at least eight-hundredths of one percent or more by weight. Walker , 137 S.W.3d at 446.
In order to satisfy the second element of her prima facie case for suspending the respondent's driver's license, that the respondent was driving with a BAC of .08% or more, the Director sought to introduce his BTR at the trial de novo before the circuit court. The introduction of the driver's BTR is "essential to establish a prima facie case under section 302.505." Orton v. Dir. of Revenue , 170 S.W.3d 516, 520 (Mo.App. 2005). This is so in that, logically, how else would the Director satisfy the second prong of her prima facie case for suspension or revocation?
Pursuant to § 577.037.1, a BTR is admissible in a § 302.505 suspension proceeding. However, in order for the Director to establish a proper foundation for the admission of the driver's BTR, to satisfy the second prong of her prima facie case for suspension or revocation, pursuant to § 302.505.1, she first has the burden of showing that: (1) the test was performed by following the techniques and methods approved by the MDH, (2) by licensed medical personnel or by a person possessing a valid permit, and (3) using equipment and devices approved by the MDH. §§ 577.020.3-4; § 577.026; Stuhr v. Dir. of Revenue , 766 S.W.2d 446, 449 (Mo. banc 1989).
The MDH regulations governing the administration of BAC breath tests are found in 19 C.S.R. 25-30.011-25-30.080. 19 C.S.R. 25-30.060(3) , applicable when using a DataMaster to test the driver's breath, which was used in this case to test the respondent's breath, requires that the operator perform and complete Form #7, which, in return requires, in pertinent part, that the driver be "observed for at least 15 minutes by ['the operator of the breath analyzer, the arresting officer or by any other competent individual,' 19 CSR 25-30.060.7]. No smoking or oral intake of any material during this time; if vomiting occurs, start over with the 15 minute observation period." In other words, a driver submitting to a breathalyzer test must be "observed" for at least fifteen minutes prior to taking the test to ensure that the driver does not smoke, vomit, or place anything in his mouth for the BTR to be admissible at trial. Carr v. Dir. of Revenue , 95 S.W.3d 121, 126 (Mo.App. 2002).
Here, when the Director sought to admit the respondent's BTR at the reinstatement hearing before the circuit court, the respondent objected on the basis that the Director had failed to lay a proper foundation for its admission. Specifically, the respondent objected on the basis that the Director had failed to show compliance with the required fifteen-minute observation period. In support of his objection, counsel for the respondent argued that the Director had conceded at the hearing that Trooper Fennewald did not actually observe the respondent "face-to-face" for fifteen minutes, as his certification training on the DataMaster required.
As to the trial court's refusal to admit the respondent's BTR, for failure to comply with the fifteen-minute observation period, the respondent argued below and argues on appeal that, although neither 19 C.S.R. 25-30.060(3) nor Form #7 expressly provides that the operator of the breath analyzer, the arresting officer or any other competent individual, observe the driver face-to-face or look directly at him for fifteen minutes to ensure that he did not smoke, put anything in his mouth, or vomit, it was implied in that, in approving the use of the DataMaster and requiring the fifteen-minute observation period, the MDH was necessarily approving the methods and techniques on which the operators of the DataMaster were trained and certified by the MDH, including observing the driver face-to-face for fifteen minutes. From this, he contends that, unless the Director adduces evidence that the arresting officer or operator of the DataMaster observed the driver "face-to-face" during the entire fifteen-minute observation period, she fails, as a matter of law, to lay a proper foundation for the admission of the driver's BTR, and, therefore, fails to make a prima facie case for suspension or revocation.
The trial court excluded the respondent's BTR at trial, and took his objection to its admission with the case. Thereafter, the trial court, in ordering the reinstatement of the respondent's driver's license, sustained the respondent's objection to the admission of his BTR because the Director had failed to lay a proper foundation for its admission. Hence, the trial court found that the Director had failed to make a prima facie case for suspension.
As to the failure to lay a proper foundation for admission of the respondent's BTR, the court found that Trooper Fennewald had failed to observe the respondent "face-to-face" for fifteen minutes, stating:
Here, the Trooper, by his own admission, failed to properly observe Mr. Vanderpool. Specifically, the Trooper testified that he was trained that he must observe the subject ' face to face' to make sure that nothing occurs which would affect the validity of the test result. The court finds that 'face to face' observation is therefore an approved 'technique' and/or 'method' of the Department of Health that was included in the Trooper's training to operate the BAC Datamaster and which must be followed.
While admitting that the evidence was undisputed that Trooper Fennewald did not look directly at the respondent during the fifteen-minute observation period, the Director claims that the trial court erroneously declared the law in requiring that the fifteen-minute observation period be "face-to-face." In other words, the Director argues that in requiring that the arresting officer or operator conducting the breath test to "observe" the driver for fifteen minutes, to ensure that he does not smoke, put anything in his mouth, or vomit, the arresting officer or operator is not required to actually watch the driver, "face to face," for the entire fifteen minutes.
As we note, supra, the MDH is mandated by the General Assembly to establish the "methods and standards" for BAC testing. § 577.037.4. Hence, MDH regulations establishing the methods and standards for BAC testing, once promulgated, carry the force of law and cannot be amended by judicial fiat. "Rules and regulations, if duly promulgated, have the force and effect of law." Div. of Family Servs. v. Cade , 939 S.W.2d 546, 551 (Mo.App. 1997). That said, 19 CSR 25-30.011(5) mandates that "[b]reath analyzers shall be operated strictly in accordance with the procedures set forth in 19 CSR 25-30.060," and the courts are duty-bound to abide by this mandate.
19 CSR 25-30.011(5)(A) requires an operator to complete an operational checklist and certification section on the approved form that corresponds to the type of machine being used. In that regard, 19 C.S.R. 25-30.060(3) requires that in using the DataMaster, the operator comply with the steps set forth in Form #7, step 1 of the operational checklist, which requires that prior to the test, the driver be "observed" for at least fifteen minutes to ensure that there is no smoking or oral intake, and that the driver does not vomit. This court, although in the context of rebutting the Director's prima facie case for suspension or revocation, has held that there must be strict compliance with the fifteen-minute observation period to ensure the accuracy of the test results. Carr , 95 S.W.3d at 129. In that regard, the Carr court opined:
It is our belief that the 'observation requirement' is critical to determining whether in fact an individual has driven while illegally intoxicated. The results of a breathalyzer test are given much weight, as they should be, in our judicial system. However, in order to insure the veracity and precision of this testing device does not become undermined, it is imperative for the police to follow minimum administrative guidelines in observing the driver before the test is given.
Id. This rationale for requiring strict compliance with the fifteen-minute observation period would logically apply equally in determining whether the Director met her burden for introducing the driver's BTR in a suspension or revocation proceeding, to make a prima facie case on the issue of whether, at the time of his arrest, the respondent's BAC was at least eight-hundredths of one percent or more by weight.
The term "observed" is not defined in the applicable regulation or Form #7 operational checklist, and we know of no cases that have attempted to define it. Necessarily, this term must be defined in order to determine the proper interpretation of the issue presented: Is "face-to-face" observation required to satisfy the fifteen-minute observation period mandated for the admission of BAC breath test results in an administrative suspension or revocation proceeding?
Agency regulations are interpreted in the same manner as statutes. Teague v. Mo. Gaming Comm'n , 127 S.W.3d 679, 685 (Mo.App. 2003). "In the absence of a definition in the regulation, the words will be given their plain and ordinary meaning as derived from a dictionary." Id. at 686. "Observed" is defined in MERRIAM WEBSTER'S COLLEGIATE DICTIONARY 801 (10th ed. 2000) as "to watch carefully esp[ecially] with attention to details or behavior for the purpose of arriving at a judgment." Employing this definition of "observed," 19 C.S.R. 25-30.060(3) requires, via Form #7, the operator of the DataMaster, the arresting officer or other competent individual "to watch carefully" the driver to ensure that there is no smoking or oral intake of any material, and that he does not vomit. Form #7 further mandates that this be done "for at least fifteen minutes." The fact that 19 C.S.R. 25-30.060(3) mandates, via Form #7, that the driver be observed for "at least fifteen minutes," prior to the testing, is not an arbitrary determination. The regulatory requirement of the fifteen-minute observation period is based on sound scientific principles to ensure the accuracy of the BAC breath test conducted by means of a DataMaster. Carr , 95 S.W.3d at 129. Hence, strict compliance with this requirement is mandated in order to ensure an accurate BTR that is worthy of being admitted as evidence in a § 302.505.1 proceeding, in which the Director is attempting to deprive a citizen of his driving privileges. In other words, the regulation is not satisfied, unless the driver is watched carefully for "at least fifteen minutes" prior to the test. Hence, any cases that suggest that the Director does not have to show that the driver was "watched carefully" for the entire fifteen minutes for her to carry her burden in the admission of a driver's BTR in a § 302.505.1 proceeding, are in direct contradiction of the controlling MDH regulation and, therefore, are simply wrong under the law and should not be followed.
We do not find any cases that come right out and hold that an observation period of less than fifteen minutes is sufficient to satisfy 19 C.S.R. 25-30.060(3). That is not surprising because that would be an obvious contradiction of the required fifteen-minute observation period. However, there are cases cited by the Director: Daniels v. Directorof Revenue , 48 S.W.3d 42, 45 (Mo.App. 2001); McKown v. Director of Revenue , 908 S.W.2d 178, 179-80 (Mo.App. 1995); State v. Wyssman , 696 S.W.2d 846, 848 (Mo.App. 1985), for the proposition that the arresting officer or operator is not required to actually watch the driver during the entire fifteen minutes of the required observation period, effectively reducing the length of the mandated observation period, which we discuss, infra.
The Director also cites Weber v. Director of Revenue , 137 S.W.3d 563 (Mo.App. 2004), for this proposition. However, a careful reading of Weber reflects that it was decided on another basis, specifically that the BTR had been admitted without objection as part of an exhibit such that the Director had met her burden in showing that the driver was driving with the requisite BAC.
As we discuss, supra, the purpose of the fifteen-minute observation period is to ensure that the driver does not smoke, put anything in his mouth, or vomit for at least fifteen minutes prior to the test, or otherwise the test result will be skewed. The only way to ensure this purpose is for the arresting officer or operator to actually watch the driver for the entire fifteen minutes in that, as we discuss, supra, the length of the observation period is critical to ensuring the accuracy of the test result. Hence, to carry her burden of establishing that the mandated fifteen-minute observation period is satisfied, to lay a proper foundation for the admission of the respondent's BTR, it is not enough that the Director present evidence that the arresting officer or operator did not see the driver smoke, put anything in his mouth, or vomit during the fifteen-minute observation period. She must also show that he was watching him carefully, for the entire required fifteen minutes, so that, if the driver did smoke, did put anything in his mouth, or did vomit, he could have seen it. If this were not true, then the fifteen-minute observation period would be effectively reduced to whatever period of time the arresting officer or operator actually watched the driver to determine if he smoked, put anything in his mouth, or vomited, in violation of the mandate of 19 C.S.R. 25-30.060(3). Logically, if the arresting officer or operator only watches the driver for a portion of the fifteen-minute observation period, he cannot testify, in order to satisfy the Director's burden to lay a proper foundation for the admission of the driver's BTR, to satisfy, in turn, the second prong of the Director's prima facie case for suspension or revocation of the driver's license, pursuant to § 302.505.1, that during the entire, requisite fifteen-minute observation period, he did not see the driver smoke, put anything in his mouth, or vomit. He can only testify that for the period of time he did watch the driver, he did not observe him do those things, which does not satisfy the purpose of 19 C.S.R. 25-30.060(3) such that the Director does not carry her burden for laying a proper foundation for the admission of the driver's BTR.
In McKown , cited by the Director for the proposition that the driver did not have to actually be watched for the entire fifteen minutes of the required observation period, the court was required to address the issue presented in this case, whether the Director had laid a sufficient foundation for the admission of the driver's BTR by demonstrating compliance with the fifteen-minute observation period. The arresting officer testified on cross-examination that "he did not look directly at [the driver] for the entire 15 minutes." 908 S.W.2d at 179. He also testified that "he did not watch [the driver] for 'a moment' when he was putting information into a computer . . . [and] acknowledged that [the driver] was only in his peripheral vision while he adjusted the breathalyzer machine." Id. The court held that because the purpose of the fifteen-minute observation period, assuring that the driver did not smoke, put anything in his mouth, or vomit, had been fulfilled, the trial court had erred in excluding the driver's BTR at the suspension hearing for the lack of a proper foundation, quoting from and relying on Wyssman , 696 S.W.2d at 848. McKown's reliance on Wyssman was misplaced.
Although Wyssman does state that: "When the record demonstrates that assurance [that the driver did not smoke, put anything in his mouth, or vomit] then the purpose of the rule has been fulfilled[,]" 696 S.W.2d at 848, a careful reading of that case reflects that the court did not hold that the driver did not have to be watched the entire fifteen minutes to satisfy the observation period requirement, as McKown appears to hold. To the contrary, the Wyssman court found that the evidence supported the fact that he had been watched for the entire fifteen minutes so as to satisfy the rule. Id.
In Wyssman , the driver's BTR was suppressed by the trial court on the basis that the fifteen-minute observation period had not been satisfied, preventing the Director from making a prima facie case for suspension. Id. at 847. The question in Wyssman , as stated by the court, was: "[W]hether an officer must himself physically observe the person to whom the breath test is to be administered for the entire 15 minute period, or if someone else may participate in the observation to supply the required 15 minutes[?]" Id. The evidence was that the arresting officer had not observed the driver for the entire required fifteen minutes, but had only observed him for fourteen minutes and thirty-nine seconds. Id. However, the court held that this lapse in observation by the arresting officer was covered by the observation of the arresting officer's brother, who was along for the ride and observed the driver during the lapse in observation by the arresting officer. Id. at 848.
The Wyssman court did cite two foreign-jurisdiction cases, State v. Hanson , 528 P.2d 100 (Or.Ct.App. 1974), and State v. Steele , 370 N.E.2d 740 (Ohio 1977), which can be read for the proposition that it is not necessary, in satisfaction of a required observation period similar to Missouri's, to actually watch the driver for the entire fifteen minutes. However, the court did not hold to that effect, as discussed, supra. The Wyssman court's citation of those cases was simply to show that its case was "a stronger case than Hanson and Steele." Wyssman , 696 S.W.2d at 848. Thus, Wyssman cannot be cited for the proposition that the arresting officer or operator is not required to watch the driver for the entire fifteen minutes in order to satisfy the requisite fifteen-minute observation period, as the Director suggests. And, to the extent that McKown can be read for that proposition, it is overruled.
In support of her contention that in order for her to carry her burden to lay a proper foundation for the admission of the respondent's BTR, she did not have to establish that Trooper Fennewald actually watched the respondent for the entire fifteen minutes prior to the test, the Director also cites cases that confuse the Director's burden in laying a proper foundation for admission of the driver's BTR, in order to make a prima facie case for suspension or revocation, with respect to the issue of whether at the time of the arrest, the driver's BAC was at least eight-hundredths of one percent or more by weight, with the driver's burden to rebut the Director's prima facie case, once made. See Hansen v. Dir. of Revenue , 22 S.W.3d 770, 773-74 (Mo.App. 2000); McKown , 908 S.W.2d at 179-80; Holley v. Lohman , 977 S.W.2d 310, 312 (Mo.App. 1998); Falaas v. Comm'n of Pub. Safety , 388 N.W.2d 40, 42 (Minn.Ct.App. 1986); State v. Brown , 359 N.E.2d 706, 708-09 (Ohio Ct.App. 1975). In those cases, the courts found that the purpose of the fifteen-minute observation period is met, despite evidence that the driver was not actually watched for the entire, required fifteen minutes, because the driver had not shown that he had smoked, put something in his mouth, or vomited during the observation period. Id.
The cases cited by the Director, requiring the driver to come forward with evidence that he had smoked, put something in his mouth, or had vomited during the fifteen-minute observation period, as a condition precedent to challenging whether the Director had carried her burden of laying a proper foundation for the admission of the driver's BTR to make a prima facie case, wholly confuse the Director's burden to lay a proper foundation for the admission of the driver's BTR and his burden to rebut the Director's prima facie case, once made. In effect, the cases cited by the Director impermissibly shift to the driver the Director's burden of laying a proper foundation for the admission of his BTR, in order to make a prima facie case for suspension or revocation, on the issue of whether the driver was driving with a BAC of .08% or more.
It is well settled that the Director, to make a prima facie case in a § 302.535.1 proceeding for suspension or revocation, pursuant to § 302.505.1, has the initial burden of presenting evidence to show that there was probable cause for the arrest of the driver for an alcohol-related offense and that at the time of arrest, his BAC exceeded the legal limit. Verdoorn v. Dir. of Revenue , 119 S.W.3d 543, 545 (Mo. banc 2003). Such a showing creates a presumption that the driver is intoxicated. Id. Once a prima facie case is made, the "driver is entitled to present rebuttal evidence that raises a genuine issue of fact regarding the validity of the blood alcohol test results." Id. at 546. However, the Director's prima facie case does not shift the burden of proof to the driver. Id. It only shifts the "burden of production to the driver to adduce evidence that his blood alcohol level did not exceed the legal limit." Id. The burden of proving, by a preponderance of the evidence, that there was probable cause to arrest the driver for driving while intoxicated and that at the time of the arrest, his BAC exceeded the legal limit, is on the Director at all times. Id.
In light of the foregoing standards, as to the burden of proof and the burden of production, any case that suggests that the Director, in making a prima facie case for suspension or revocation in a § 302.535.1 proceeding, pursuant to § 302.505.1, because the driver failed to produce evidence as to the issue of probable cause to arrest him or the issue of whether, at the time, his BAC exceeded the legal limit, are wrong. This proposition would, logically, extend to the Director's burden in admitting the driver's BTR at the suspension or revocation proceeding in that it is well settled that it is the Director's burden to establish the admissibility of the driver's BTR. Endsley v. Dir. of Revenue , 6 S.W.3d 153, 163 (Mo.App. 1999) ( rev'd on other grounds, Verdoorn , 119 S.W.3d at 547). As such, any case suggesting that the driver's failure to adduce evidence that he smoked, put something in his mouth, or vomited, during the requisite fifteen-minute observation period, relieved the Director of her burden of laying a proper foundation for admission of the driver's BTR, with respect to the fifteen-minute observation period, in order to make a prima facie case for suspension or revocation on the issue of whether the driver's BAC, at the time of arrest, exceeded the legal limit, iswrong and should not be followed.
In Daniels , also cited by the Director for the proposition that the driver did not have to actually be watched for the entire fifteen minutes of the required observation period, the issue, unlike here, was whether the driver had carried his burden of adducing evidence sufficient to rebut the Director's prima facie case. In reversing the trial court's reinstatement of the driver's license, the court found that the driver's evidence was insufficient to rebut the Director's prima facie case in that the driver did testify that "at no time did he either smoke, place anything into his mouth, or vomit." 48 S.W.3d at 45. However, in dicta, the trial court did opine, without any citation to authority, that it was not necessary for the driver to be "observed every moment of the fifteen minutes immediately prior to taking the breath analyzer examination." Id. In so opining, the Daniels court relied on the proposition that: "When the record shows that the purpose of the 15-minute observation requirement is fulfilled, courts admit the test results." Id. ( quoting Hansen , 22 S.W.3d at 773). This quoted reasoning appears to speak to both rebuttal cases and prima facie cases. However, as we discuss, supra, to apply this reasoning to prima facie cases flies in the face of the Director having the burden to make a prima facie case. It also flies in the face of the Director's burden to lay a proper foundation for the admission of the driver's BTR, in making a prima facie case, with respect to the required fifteen-minute observation period. In any event, inasmuch as it is dicta and is contrary to the law, it is not persuasive.
The Missouri Supreme Court recently decided Coyle v. Director of Revenue , 181 S.W.3d 62(Mo. banc 2005), in which it addressed the sufficiency of the evidence for the driver torebut the Director's prima facie case for suspension, with respect to the failure to observe the fifteen-minute observation period. In Coyle v. Director of Revenue , No. WD 63399, 2005 WL 405866, at *1 (Mo.App.W.D. March 29, 2005), on appeal to this court, the driver argued, inter alia, that he had rebutted the Director's prima facie case, as found by the trial court in reinstating his license, in that he had demonstrated that the arresting officer did not watch him for the entire, required fifteen minutes before the breathalyzer test was administered. There was evidence that the driver was put into the officer's patrol car and was, therefore, out of the trooper's sight for a minimum of five minutes while the officer moved Coyle's vehicle to a safe location. Id. There was no evidence, however, that during that period of time he smoked, vomited or put anything in his mouth. Id. This court, in affirming the trial court's restoration of the driver's operator's license, held that the evidence of the failure of the arresting officer to actually observe the driver for the entire, required fifteen minutes before the test was administered, was sufficient to rebut the Director's prima facie case for suspension. Id. at *3-4. In so holding, this court stated that the observation requirement was not satisfied in that the arresting officer did not keep the driver in his "line of sight" during the entire required fifteen minutes. Id. at *3. On transfer to the Supreme Court, however, the Court, in reversing the trial court, held that torebut the Director's prima facie case for suspension or revocation, based on a failure to comply with the required fifteen-minute observation period, the driver had to "present evidence that an event occurred during that period that affected the [BTR]" and that a "lack of observation, without more," is not sufficient to attack the validity of the driver's BTR once a prima facie case is made. Coyle , 181 S.W.3d at 66. The Supreme Court's holding in Coyle does not address the issue presented to this court in this case — the sufficiency of the evidence to comply with the required fifteen-minute observation period, in order to lay a proper foundation for the admission of a driver's BTR in making the Director's prima facie case for suspension or revocation, on which she, not the driver, has the burden of introducing evidence. Specifically, the Court did not address whether in order to satisfy the observation period, the driver had to be in the arresting officer's "line of sight" for the entire fifteen minutes.
This would occur where the BTR came in without objection so as to make a prima facie case, and the driver seeks to attack the validity of the BTR, for a lack of compliance with the fifteen-minute observation period, in rebutting the Director's case.
The Director also contends that the fifteen-minute observation period can be satisfied by the operator "observing" the driver using senses other than the sense of sight. In making this argument, the Director cites State v. Hanson , 528 P.2d at 102, and Barone v. Department of Revenue , 736 P.2d 432, 434 (Colo.Ct.App. 1987). She argues that Trooper Fennewald, although not looking at the respondent, would have been able to hear if he would have burped or belched so that the purpose of the fifteen-minute observation period was met. The cases cited by the Director appear to stand, in pertinent part, for the proposition that other senses, when used in conjunction with sight, can aid the operator in determining whether the driver smoked, put anything in his mouth, or vomited during the required observation period. While using senses other than sight to "observe," obviously, gives a meaning to the term that is not ordinarily attached to it such that it is extremely unlikely that the MDH intended that it be interpreted in that sense (no pun intended), we have no quarrel with the fact that other senses can aid in interpreting what the arresting officer or operator sees. However, we are steadfast as to the notion that to rely solely on senses, other than sight, does not ensure that the driver does not smoke, put anything in his mouth, or vomit. In other words, while the purpose of the observation period can certainly be satisfied by the arresting officer or operator's relying on senses in conjunction with sight, to suggest that looking at the driver is unnecessary to "observing," just does not ring true. See State v. Arnold , 80 S.W.3d 27, 30 (Tenn.Crim.App. 2002) (stating, in pertinent part, "a belch or regurgitation sufficient to skew the results of a breath analysis test may not produce a sound loud enough to be heard by another person"); see also State v. Carson , 988 P.2d 225, 227 (Idaho Ct. App. 1999).
The Director further contends that the observation-period requirement is satisfied even when the arresting officer or operator fails to watch the driver as long as the purpose of the requirement is met — ensuring that the driver did not smoke, put anything in his mouth, or vomit, citing Hansen , 22 S.W.3d at 773; McKown , 908 S.W.2d at 179; Daniels , 48 S.W.3d at 45; and Wyssman , 696 S.W.2d at 848. In that regard, she argues that the respondent's being handcuffed behind the back, while being transported to the sheriff's office and awaiting to be tested, reasonably assured that he did not smoke or put anything in his mouth, even if Trooper Fennewald was not looking at him because he was seated behind him in the patrol car and the trooper was pre-occupied with driving on a rural highway at night, not to mention carrying on a conversation with the respondent and his passenger. Without looking at the respondent, Trooper Fennewald could not be assured that he did not already have something in his mouth when he was handcuffed; that the respondent's passenger did not put something in the respondent's mouth; or that the respondent did not vomit in his mouth. While the respondent's being handcuffed can be considered, it is not a substitute for the actual observation required by the applicable MDH regulation.
Other than Carr , the history of the § 302.505 suspension and revocation cases reflects a slow erosion of requiring compliance with the fifteen-minute observation period. This is unfortunate. The "requirement imposes a relatively insignificant administrative burden on the police, and . . . its benefits in instilling confidence in the testing results far outweigh any inconvenience." Carr , 95 S.W.3d at 129. On balance, given the purpose of the observation period and the slight inconvenience to law enforcement to effectuate that purpose, we can see no reason for allowing the observation period to be treated as just another administrative hurdle that can be ignored, in whole or part, in order to achieve a desired result.
In summary, for the Director to satisfy her burden of laying a proper foundation for the introduction of the respondent's BTR, to make a prima facie case for suspension, she had to adduce evidence at the respondent's suspension hearing that the fifteen-minute observation period was satisfied, in accordance with 19 CSR 25-30.060(7). To do that, contrary to the conclusion of the trial court, she did not have to adduce evidence that Trooper Fennewald observed the respondent "face-to-face" for the required fifteen minutes preceding the test so that if the respondent did smoke, put something in his mouth, or vomit, he would have seen it. Rather, she had to adduce evidence that he carefully watched the respondent for the required fifteen minutes preceding the test so that if the respondent did smoke, put something in his mouth, or vomit, he would have seen it. The question then for us is whether there was evidence presented by the Director to satisfy this foundational requirement for admission of the respondent's BTR.
The fact that the trial court found expressly a lack of a proper foundation for admitting the respondent's BTR, on the basis that the evidence was insufficient to show that Trooper Fennewald observed the respondent "face-to-face" for fifteen minutes, rather than for the standard we adopt, supra, "watched carefully," is irrelevant. This is so in that we are to affirm the trial court's judgment on any basis supported by the record, regardless of the basis found by the court. Testerman v. Dir. of Revenue , 31 S.W.3d 473, 477 (Mo.App. 2000). As we discuss, infra, the record supports the trial court's judgment reinstating the respondent's license on the basis that the fifteen-minute observation period was not satisfied for admission of the respondent's BTR, in order to make a prima facie case for suspension, because Trooper Fennewald failed to carefully watch the respondent for at least fifteen minutes prior to the breathalyzer test. In that regard, the trial court expressly found that: "any testimony or suggestion by the Trooper that he did, or could have, properly observed Mr. Vanderpool during the 15 minute observation period to make sure nothing occurred which would have affected the test result was not credible." (Emphasis added.) In light of this express finding, as to Trooper Fennewald's lack of credibility with respect to the issue of compliance with the fifteen-minute observation period, and the competing evidence thereon, this court is not duty-bound to accept the Director's evidence that there was compliance with the required observation period. See Brown v. Dir. of Revenue , 85 S.W.3d 1, 7 (Mo. banc 2002).
In determining whether the Director had carried her burden of laying a proper foundation for the admission of the respondent's BTR, to make a prima facie case for suspension, the trial court was faced with conflicting evidence. Although Trooper Fennewald concluded and testified to the fact that he had observed the respondent for the requisite fifteen minutes prior to the test, the respondent's evidence, elicited by the respondent on voir dire of Trooper Fennewald, and the Director's evidence itself, suggested otherwise. As we discuss, infra, the trial court was free to believe either the Director's or the respondent's evidence as to the observation period, and chose to believe the respondent's.
In the very recent case of York v. Director of Revenue , 186 S.W.3d 267, 270 (Mo. banc 2006), the Missouri Supreme Court was faced with the issue of whether the trial court, in reinstating the driver's license, after suspension by the Director, pursuant to § 302.505.1, had "erred when excluding the results of the [driver's] PBT [portable breath test] because section 577.021 [did] not require any foundation for the admission of these tests." The Director contended that the PBT result, had it been admitted, "coupled with the remaining observations of the trooper, was sufficient evidence to support probable cause for [the driver's] arrest and suspension of his driving privileges." Id. Recognizing that § 577.021 permits the result of a driver's PBT, "as evidence of probable cause to arrest," the Court observed that the trial court, in reinstating the driver's license, had ruled that the PBT result was not admissible because "the trooper lacked the proper training to administer the PBT and that no evidence existed to establish that the device used was properly calibrated, maintained or even working at the time it was used." Id. at 272. In finding that the trial court did not err in excluding the driver's PBT result, for a lack of a proper foundation for admission, the Court deferred to the trial court's credibility determinations. Id. Applying the Court's decision here, the trial court was free to believe the respondent's evidence concerning Trooper Fennewald's failure to observe him, in accordance with the fifteen-minute observation requirement.
The Director candidly admits on appeal that Trooper Fennewald was not looking directly at the respondent for the entire fifteen minutes. She contends, however, that using his peripheral vision, he was able to watch the respondent for the required fifteen minutes. And, given the fact that the respondent was handcuffed, had been searched, and was seated in close proximity to Trooper Fennewald, the Director contends he could testify truthfully that he "observed" the respondent so as to attest to the fact that during that time period he did not smoke, put anything in his mouth, or vomit, satisfying the requisite fifteen-minute observation period to admit the respondent's BTR so as to make a prima facie case for suspension. The Director's contention that the trooper was watching the respondent during the required fifteen minutes, using his peripheral vision, such that he would have been able to observe him smoke, put anything in his mouth, or vomit, is directly controverted by the record.
The Director's own evidence reflects that Trooper Fennewald arrested the respondent at approximately 2:00 a.m. and placed him in the backseat of his patrol car, after handcuffing him. He then moved the respondent's vehicle, secured it, and returned to his patrol car, which took about five minutes. Trooper Fennewald gave the respondent's passenger a ride to the Benton County Sheriff's Department. The passenger was not searched or handcuffed. Trooper Fennewald testified that while he was driving, his attention was focused on driving, and he engaged in conversation with the respondent and his passenger. After they arrived at the Benton County Sheriff's Department, at approximately 2:30 a.m., Trooper Fennewald read the respondent the implied consent warning at approximately 2:37 a.m., and set up the DataMaster, which required him to focus his attention on entering data into the machine, which took approximately two minutes. The test was administered at approximately 2:39 a.m.
Although in Carr and Coyle , the operator left the physical presence of the respondent so that the respondent was not within the operator's line of sight, in our case, Trooper Fennewald did not leave the physical presence of the respondent during the fifteen minutes preceding the test. However, for a significant portion of the fifteen minutes preceding the test, the respondent was seated directly behind the trooper such that the trooper was not actually watching the respondentfor that period of time. Common sense tells us that a member of the Missouri Highway Patrol, who is trained to be a careful and safe driver at all times, operating his patrol vehicle on a rural highway in the middle of the night, would be "observing" the road and not his passenger seated directly behind him. This alone was sufficient for the trial court to conclude that Trooper Fennewald was not watching the respondent, at all times, during the required fifteen minutes, either face-to-face or peripherally, so that he could have observed him smoking, putting something in his mouth, or vomiting. Trooper Fennewald admitted that he was not watching the respondent "face-to-face" during most of this time, but testified that he could see the respondent in his peripheral vision. As noted, supra, the trial court was free to disbelieve the trooper's testimony concerning his being able to observe the driver using his "peripheral vision" to determine if he smoked, put something in his mouth, or vomited, which it expressly found that it did.
Because the evidence was sufficient for the trial court to find that the fifteen-minute observation period was not satisfied, its ruling excluding the respondent's BTR for the Director's failure to lay a proper foundation for its admission, with respect to the fifteen-minute observation period, was not error.
Point denied.
Conclusion
The judgment of the circuit court, reinstating the driver's license of the respondent, after it had been administratively suspended by the Director for the respondent's driving with a blood alcohol concentration of .08% or more, pursuant to § 302.505.1, is affirmed.