Stiers v. Dir. of Revenue

477 S.W.3d 611

Kristin Nicole Stiers, Respondent,

v.Director of Revenue, Appellant.

No. SC 94840

Supreme Court of Missouri, en banc .

Opinion issued January 12, 2016

The director was represented by Danial McPherson of the attorney general's office in Jefferson City, (573) 751–3321.

Stiers was represented by Robert S. Adler of the Law Offices of Robert S. Adler PC in St. Louis, (314) 725–2400.

Laura Denvir Stith, Judge

The Director of Revenue appeals from the trial court's judgment excluding the results of Kristin Nicole Stiers' breath test and reinstating her driving privileges after those privileges were revoked by the Director. The trial court found the Director failed to lay a proper foundation for admission of the breath test results because the machine on which the breath test was conducted was calibrated using only one standard solution whereas tests utilizing three standard solutions of different strengths were required by 19 CSR 25–30.051, which was the relevant department of health and senior services (DHSS) regulation in effect at the time of the breath test.¹

The Director argues that the trial court erred in excluding the results of Ms. Stiers' breath test. This Court rejects the Director's arguments that the regulation in question was intended merely to list solutions that could be used and that this Court should infer that only one solution is required to be used in calibrating breath analyzers from the fact that only one solution is to be reported per form used. Multiple forms may be submitted. This Court finds that 19 CSR 25–30.051, titled "Breath Analyzer Calibration and Accuracy Verification Standards," sets out the standards to be employed in calibrating breath analyzers in subsection 2, which in 2013 stated, "The standard simulator solutions used shall have a vapor concentration within five percent (5%) of the following values: (A) 0.10%; (B) 0.08%; and (C) 0.04%."

This Court also rejects the Director's alternative arguments that the regulation simply sets out a procedural rule governing admissibility of breath test results at trial and that revisions to the regulation that the DHSS adopted between the time of arrest in 2013 and trial in 2014 should retrospectively validate an otherwise improperly conducted calibration. Section 577.037, not a DHSS regulation, sets out the standards for admission of breath test results. The regulations governing breath tests on a properly calibrated machine serve multiple purposes, including providing a basis for suspension or revocation of a driver's license. That is true regardless of whether the driver later files an administrative appeal or seeks de novo review in circuit court. The standard by which the validity of that calibration is judged necessarily must remain the same from the time of the initial suspension through the time that de novo review is undertaken. It would be strange indeed were the law otherwise, and the initial suspension and review were undertaken under one version of a regulation but the court's de novo review of that suspension were considered under a later-adopted regulation intended to correct flaws in the original regulation. The regulation in effect at the time of the breath test governs. Under this regulation, the calibration was not valid. The judgment is affirmed.

I. STATEMENT OF FACTS AND PROCEDURAL HISTORY

On July 12, 2013, Lake St. Louis Police Officer Gerald Crowley stopped Ms. Stiers' vehicle after he observed her swerving between lanes. At Officer Crowley's request, Ms. Stiers took a field sobriety test, which indicated impairment. She was placed under arrest for driving while intoxicated and taken to the Lake St. Louis Police Department. There, Ms. Stiers agreed to take a breath test on an Alco–Sensor IV (breath analyzer ), which measured a .172–percent blood alcohol concentration (BAC). Officer Crowley then issued Ms. Stiers a notice of revocation of her driving privileges pursuant to section 302.520.1, which states:

Whenever the chemical test results are available to the law enforcement officer while the arrested person is still in custody, and where the results show an alcohol concentration of eight-hundredths of one percent or more by weight of alcohol in such person's blood ... the officer, acting on behalf of the department, shall serve the notice of suspension or revocation personally on the arrested person.

(Emphasis added).

Revocation of Ms. Stiers' driving privileges was stayed temporarily while she sought administrative review of the suspension under section 302.530. The suspension was upheld at the administrative hearing, and the department of revenue issued its final order revoking Ms. Stiers' driving privileges based on the results of the breath test. Ms. Stiers then timely filed a petition for a trial de novo in the circuit court under section 302.535.1.² Ms. Stiers' trial was held on April 10, 2014. The Director offered the results of Ms. Stiers' breath test as evidence that her BAC was above .08 percent at the time of her arrest. Ms. Stiers objected to the admission of the breath test on the ground that the breath analyzer used to administer her breath test was not calibrated in accordance with the version of 19 CSR 25–30.051.2 in effect at the time of her 2013 arrest. At that time, subsection 2 stated that "the standard simulator solutions used shall have a vapor concentration within five percent (5%) of the following values: (A) 0.10%; (B) 0.08%; and (C) 0.04%."

Because it is undisputed that the breath analyzer used in her case was calibrated using only one solution, Ms. Stiers argued that her breath test results were invalid. The trial court agreed, rejecting the Director's argument that 19 CSR 25–30.051.2 did not govern which solutions should be used and refusing to rule that, in context, the word "and" really meant "or." The trial court also rejected the Director's argument that the validity of the breath test should be determined by the emergency revision to the regulation that DHSS promulgated in 2014, shortly before trial, which required that only one solution be used to calibrate a breath analyzer. The court excluded the breath test results and found that, without them, the Director failed to meet the State's burden of providing sufficient credible evidence that Ms. Stiers drove with a BAC above .08 percent. Following an opinion by the court of appeals, this Court granted transfer. Mo. Const. art. V, § 10.

II. STANDARD OF REVIEW

"[Appellate courts] review the trial court's judgment in a ... license suspension or revocation case like any other court-tried civil case." Johnson v. Dir. of Revenue, State , 411 S.W.3d 878, 881 (Mo.App.2013). "In appeals from a court-tried civil case, the trial court's judgment will be affirmed 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." White v. Dir. of Revenue , 321 S.W.3d 298, 307–08 (Mo. banc 2010). "When facts are not contested and the issue is one of law, our review is de novo, and no deference is given to the trial court's determination." Johnson , 411 S.W.3d at 881.

Here, the Director does not contest any factual findings made by the trial court. Instead the Director alleges that either the trial court applied the wrong regulation or the trial court misinterpreted the regulation it applied. "Statutory interpretation is an issue of law that this Court reviews de novo. " Finnegan v. Old Republic Title Co. of St. Louis, Inc. , 246 S.W.3d 928, 930 (Mo. banc 2008). "Regulations are interpreted according to the same rules as statutes." Dep't. of Soc. Servs., Div. of Med. Servs. v. Senior Citizens Nursing Home Dist. of Ray Cnty. , 224 S.W.3d 1, 9 (Mo.App.2007). Therefore, because this case involves the application and interpretation of a regulation, this Court reviews the trial court's decision de novo.

III. THE 2013 VERSION OF 19 CSR 25–30.051 REQUIRED THAT BREATH ANALYZERS BE CALIBRATED WITH THREE SOLUTIONS

Section 577.037 requires that breath tests be performed "... in accordance with methods and standards approved by the state department of health and senior services." These methods and standards are set out in 19 CSR 25–30.011 to 25–30.080. Regulation 19 CSR 25–30.051.2 as promulgated by DHSS at the time of Ms. Stiers' breath test stated:

(2) Standard simulator solutions, used to verify and calibrate evidential breath analyzers, shall be solutions from approved suppliers. The standard simulator solutions used shall have a vapor concentration within five percent (5%) of the following values:

(A) 0.10%;

(B) 0.08%; and

(C) 0.04%.

(Emphasis added).

"When interpreting a statute, the primary goal is to give effect to legislative intent as reflected in the plain language of the statute." State v. Moore , 303 S.W.3d 515, 520 (Mo. banc 2010). "This Court's primary rule of statutory interpretation is to give effect to legislative intent in the plain language of the statute at issue." Parktown Imports, Inc. v. Audi of America, Inc. , 278 S.W.3d 670, 672 (Mo. banc 2009) ; Dep't. of Soc. Servs., Div. of Med. Servs. , 224 S.W.3d at 9 ("Regulations are interpreted according to the same rules as statutes."). The regulation's use of the conjunction "and" on its face seems to require that three simulator solutions set at different concentration levels be used to calibrate each breath analyzer.

The Director argues, however, that considered in the context of other regulations, the intent of the regulations as a whole is to require only one solution be used during calibration. The Director concedes that the regulation just quoted uses the word "and" when listing the three types of solutions that "shall" be used. The Director specifically acknowledges that because 19 CSR 25–30.051.2 joins together the list of the three solutions with the word "and," the regulation cannot itself be read to require use of only a single solution rather than three solutions. Indeed, in the context of interpreting...