Frankie Ray Vanderpool III, Respondent, v. Director of Revenue, Appellant.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion

Case Style: Frankie Ray Vanderpool III, Respondent, v. Director of Revenue, Appellant. Case Number: SC88013 Handdown Date: 05/29/2007 Appeal From: Circuit Court of Benton County, Hon. Larry M. Burditt Counsel for Appellant: Nicole L. Loethen Counsel for Respondent: Carl M. Ward and Jeffrey S. Eastman Opinion Summary: This summary is not part of the opinion of the Court. It has been prepared by the Communications Counsel for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court and should not be quoted or cited. The opinion of the Court, which may be quoted, follows the summary. In September 2003, Frankie Ray Vanderpool III was arrested for driving while intoxicated and was transported to the Benton County sheriff's department. The drive took between 25 and 30 minutes. At the sheriff's department, 39 minutes after Vanderpool was arrested, officers administered a blood alcohol breath test that showed Vanderpool's blood alcohol content was 0.166, more than twice the legal limit. The director of revenue notified Vanderpool that his driver's license had been suspended pursuant to section 302.505, RSMo. Vanderpool ultimately sought a trial de novo (a trial anew, with no deference to the administrative findings) of his suspension in the circuit court, where Vanderpool objected to admission of the breath test. The trial court sustained his objection, finding the arresting officer did not observe Vanderpool for the requisite 15 minutes before the test because, for part of that time, he was driving the patrol car. Without the blood alcohol test results, the director was unable to prove the suspension was warranted, and the trial court set it aside. The director appeals.

REVERSED AND REMANDED. Court en banc holds: The circuit court abused its discretion in finding the blood alcohol test results were inadmissible solely because the trooper did not maintain an uninterrupted 15-minute observation while transporting Vanderpool to the sheriff's department to administer the test. As this Court held in Coyle v. Director of Revenue, 181 S.W.3d 62 (Mo. banc 2005), failure to conduct a 15-minute observation is not alone a sufficient basis to undermine the validity of blood alcohol test results. For a blood alcohol test to be rendered inadmissible, in addition to the lack of continuous observation, the driver also must present some evidence that he smoked, vomited or orally ingested some other materials during the 15-minute period or present evidence showing that the driver did something else that affected the validity of the test results. Id. at 66. Here, because Vanderpool did not allege he engaged in any of these prohibited activities, the court erred in ruling the test results inadmissible. Citation: Opinion Author: Richard B. Teitelman, Judge Opinion Vote: REVERSED AND REMANDED. All concur. Opinion: This slip opinion is subject to modification until the Court has ruled on the parties' motions for rehearing, if any, and will become final only after the Court issues its mandate. To see when the Court issues its mandate, please check the docket entries for the case on Case.net. The Director of Revenue appeals from a judgment reinstating the driving privileges of Frankie Ray Vanderpool. The director asserts that the circuit court erred in concluding that blood alcohol test results were inadmissible because the test administrator did not conduct an uninterrupted 15-minute observation prior to administering the test. In Coyle v. Director of Revenue, 181 S.W.3d 62 (Mo. banc 2005), this Court established that that failure to conduct a 15-minute observation is not, standing alone, a sufficient basis to undermine the validity of blood alcohol test results. Therefore, the circuit court erred in finding that the test results were inadmissible. The judgment is reversed, and the case is remanded.(FN1) FACTS

On September 7, 2003, at 2:00 a.m., Vanderpool was arrested for driving while intoxicated. He was handcuffed, placed in the patrol car, and transported to the Benton County sheriff's department. The drive to the sheriff's department took approximately 25 to 30 minutes. At 2:39 a.m., a blood alcohol breath test was administered. The test showed Vanderpool's blood alcohol content was .166, which exceeds the legal limit of .08. The director notified Vanderpool that his driver's license had been suspended, pursuant to section 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." Vanderpool requested and obtained administrative review of his suspension. The suspension was upheld. Vanderpool then petitioned for de novo review of the suspension in the circuit court of Benton County. At trial, Vanderpool objected to the admission of the breath test on the grounds that the trooper did not comply with the 15-minute observation period. The circuit court sustained Vanderpool's objection because "the arresting officer did not observe [Vanderpool] for 15 minutes as required." The circuit court found that during part of the 15-minute observation period, the trooper was driving the patrol car and that his testimony that he observed Vanderpool was not credible. Without the blood alcohol test results, the director was unable to establish a prima facie case for suspension. Accordingly, the circuit court set aside the suspension. The director appeals. ANALYSIS The trial court's judgment reinstating Vanderpool's driving privileges 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. Walker v. Dir. of Revenue, 137 S.W.3d 444, 446 (Mo. banc 2004). As to the admission of evidence, the circuit court's decision is reviewed for abuse of discretion. Vernon v. Director of Revenue, 142 S.W.3d 905, 909 (Mo. App. S.D. 2004). In order to establish a prima facie case for suspension of a driving license for driving while intoxicated, the director must present evidence showing "(1) probable cause for the arrest and [that] (2) the driver's blood alcohol level exceeded

the legal limit." Coyle v. Director of Revenue, 181 S.W.3d 62, 64 (Mo. banc 2005). To establish a foundation for admitting blood alcohol test results, the director must establish that the test was performed: (1) following approved techniques and methods of the division of health, (2) by an operator holding valid permit, (3) on equipment and devices approved by the division. Id. Among the approved techniques and methods for administering a blood alcohol test is that the test administrator must observe the test subject for 15 minutes prior to administration of the test. 19 CSR 25-30.060. For purposes of this case, the regulations required, in part, the following: the subject was observed for 15 minutes by a named person; no smoking or oral intake of any material occurred during the observation period; and, if vomiting occurred during the observation period, the 15-minute observation period must begin again. The director argues that the circuit court abused its discretion in excluding the blood alcohol test results because Vanderpool did not allege that he engaged in any activity that might have affected the test result. The director is correct. In Coyle v. Director of Revenue, 181 S.W.3d 62, 64 (Mo. banc 2005), this Court established the analytical framework for assessing claims that blood alcohol test results are inadmissible due to an alleged failure to abide by the 15-minute observation requirements.(FN2) This Court held that a blood alcohol test is not rendered inadmissible when a driver establishes that the officer did not conduct an uninterrupted, 15-minute visual observation of the driver. In addition to the lack of continuous observation, the driver must also present some evidence that he or she smoked, vomited or orally ingested some other materials during the 15 minute period, or present evidence showing, by expert testimony or otherwise, that "the driver did something or was subject to some factor other than smoke, oral intake of any material, or vomiting that affects the validity of the blood alcohol results." Id. at 66. "[T]he lack of observation, without more, does not provide a basis to question the validity of the blood alcohol test results." Id. Vanderpool did not allege that he engaged in any of the prohibited activities. Therefore, under Coyle, the circuit court erred in finding that the blood alcohol test results were inadmissible solely because the trooper did not maintain an uninterrupted 15-minute observation while transporting Vanderpool to the Sheriff's Department for administration of the test. The judgment is reversed, and the case is remanded.

All concur. Footnotes: FN1. This Court has jurisdiction after granting transfer following an opinion by the court of appeals. Mo. Const. art. V, sec. 10. FN2. The issue in Coyle was whether the driver had rebutted the director's prima facie case for revocation while, in this case, the issue is whether the Director established a prima facie case. This is a procedural distinction without difference, and it does not influence the analysis. The central point of Coyle was that lack of observation alone is not a sufficient basis to question the validity of blood alcohol test results. The Coyle analysis is equally applicable to an assessment of whether a driver's objection is sufficient to prevent the director from establishing a prima facie case. Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.