Michael E. Coyle, 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 Missouri Court of Appeals Western District Case Style: Michael E. Coyle, Respondent v. Director of Revenue, Appellant. Case Number: WD63399 Handdown Date: 02/22/2005 Appeal From: Circuit Court of Platte County, Hon. Gary D. Witt Counsel for Appellant: James Chenault, III Counsel for Respondent: Jeffrey S. Eastman Opinion Summary: After Michael Coyle's driver's license was suspended, he filed a petition challenging the suspension. The circuit court granted Coyle's motion to suppress breath test result and set aside the suspension. The director of revenue appealed, and the Court of Appeals reversed and remanded. Coyle v. Director of Revenue, 88 S.W.3d 887 (Mo. App. 2002). On remand, the circuit court reinstated Coyle's driving privileges. The director appeals. AFFIRMED. Division holds: Reinstatement of Coyle's driving privileges was warranted due to the failure to comply with the minimum observation period requirements. Citation: Opinion Author: Harold L. Lowenstein, Judge Opinion Vote: AFFIRMED. Newton, P.J. and Holliger, J., concur. Opinion: Respondent Michael E. Coyle's driving privileges were suspended pursuant to Section 302.505.1. (FN1) After a trial de novo in which the trial court entered judgment for Coyle, this court reversed the judgment, holding that the Director of

Revenue ("Director") had established a prima facie case and remanded the matter for Coyle to present rebuttal evidence. The trial court then found that Coyle rebutted the Director's case and reinstated his driving privileges. The Director now appeals. STATEMENT OF FACTS Coyle was arrested at 1:05 a.m. and subsequently charged for driving while under the influence of alcohol. After his arrest, Coyle was placed in the front seat of the patrol car. The arresting officer then returned to Coyle's vehicle to determine whether his wife could drive. After administering a portable breath test and determining that she could not, the officer escorted her to his patrol car as well. Before ultimately transporting the Coyles to the station, the officer drove their car to a safe location thirty-five to fifty feet away. Coyle was left unattended in the patrol car for a minimum of five minutes during this period. Coyle was asked to provide an evidentiary breath sample at 1:22 a.m., seventeen minutes after his arrest. In the fifteen minutes prior to administration of the test, Coyle did not smoke or vomit. There was no record of oral intake of any material. He did, however, belch during this time period. Coyle's blood alcohol level tested at .137 percent. The Director suspended Coyle's driver's license for driving with an excessive blood alcohol content ("BAC") pursuant to Section 302.505.1. After a trial de novo , the trial court set aside his suspension, reasoning that the Director had not met his burden of proving Coyle's BAC was greater than .10 percent. (FN2) On appeal, this court held that the Director had established a prima facie case and remanded the matter to allow Coyle the opportunity to present rebuttal evidence. See Coyle v. Dir. of Revenue , 88 S.W.3d 887 (Mo. App. 2002). The trial court found that because the requisite fifteen-minute observation period was not strictly complied with, the Director's case was rebutted. This appeal follows. STANDARD OF REVIEW In reviewing a court-tried case, this court should sustain the judgment of the court below unless the judgment is not supported by substantial evidence, is against the weight of the evidence, erroneously declares the law, and/or erroneously applies the law. Murphy v. Carron , 536 S.W.2d 30, 32 (Mo. banc 1976). When the evidence is uncontroverted and the real issue concerns its legal effect, this court need not defer to the trial court's judgment. Hinnah v. Dir. of Revenue, 77 S.W.3d 616, 620 (Mo. banc 2002). ANALYSIS The Director contends that the trial court erroneously applied the law in reinstating Coyle's driving privileges and that the judgment is unsupported by evidence. Specifically, the Director argues that Coyle failed to rebut the prima facie case

since he did not adduce any evidence that he engaged in any proscribed conduct during the requisite fifteen-minute observation period. In order to establish a prima facie case for suspension, the Director is required to establish that (1) "the driver was arrested on probable cause that he or she was committing an alcohol-related driving offense," and (2) "the driver had been driving at a time when his or her blood alcohol concentration was at least .10 percent by weight." House v. Dir. of Revenue, 997 S.W.2d 135, 138 (Mo. App. 1999). The Director may be required to lay a proper foundation for introduction of the BAC in order to satisfy the second prong. Stuhr v. Dir. of Revenue , 766 S.W.2d 446, 449 (Mo. banc 1989). If the driver raises a foundational objection, the Director must establish that the breath test was administered pursuant to the Code of State Regulations' requirements for the results to be introduced into evidence. Id . If, however, the driver does not object, BAC evidence may properly be considered. Reinert v. Dir. of Revenue , 894 S.W.2d 162, 164 (Mo. banc 1995). In instances where a foundational objection is raised, the Code of State Regulations requires proof that the test be performed "(1) by following the approved techniques and methods of the Department of Health, (2) by an operator holding a valid permit, (3) on equipment and devices approved by the division." Stuhr, 766 S.W.2d at 499. Under the Department of Health's requirements, the individual to whom the breath analysis is administered must be observed for fifteen minutes prior to the test in order to ensure that there is no smoking, oral intake, or vomiting. 19 C.S.R. 25-30.060. In Coyle's trial de novo , the Director offered evidence of Coyle's BAC. Coyle objected, citing that the breathalyzer had undergone unauthorized software changes and thus was not in compliance with the Code of State Regulations' guidelines. He did not object to any defects in the observation period. The trial court sustained Coyle's motion and denied admission of the test results. Due to this lack of evidence, the court held that the Director had established a prima facie for suspension and reinstated Coyle's driving privileges. The Director appealed; on review, this court held that the Director had not laid the proper foundation for admission of the test results and that the Director did, in fact, establish a prima facie case. Because the BAC was not in evidence in the trial below, however, this court remanded the matter to afford Coyle the opportunity to rebut the Director's case. On remand, Coyle presented rebuttal evidence as to the first and third foundational requirements. With regard to the first requirement, whether Division of Health techniques were followed, Coyle and his wife both testified concerning the time period in which he was observed prior to administration of the breath test. The Director now contends that by failing to object on this specific ground to the foundational basis of the BAC result, either at his trial de novo or at his second trial, Coyle waived his right to challenge proof of the observation period. This argument is misplaced. Coyle's failure to object to admission of his BAC results on grounds that the officer failed to comply with the fifteen-

minute observation period does not obviate his opportunity to present a defense on this ground; it merely means that the trial court could properly consider the BAC evidence. See Sellenriek v. Dir. of Revenue , 826 S.W.2d 338, 339 (Mo. banc 1992) ("When evidence of [the test results] is admitted without objection, the party against whom it is offered waives any objection to the evidence, and it may be properly considered even if the evidence would be excluded by a proper objection."). Review of the judgment below indicates that the trial court did just that. In determining whether Coyle had rebutted the Director's prima facie case, the trial court expressly found that Coyle was out of the arresting officer's sight for at least five minutes during the seventeen-minute observation period. (FN3) Because Coyle did not object to admission of the test results, the record contained evidence both of his BAC and of the sequence of events leading up to administration of the test. The trial court's reliance on the testimony of Coyle and his wife regarding the length and continuity of the observation period was, therefore, not erroneous. Furthermore, since the facts are uncontroverted, the Director's allegation of error more accurately relates the trial court's interpretation of Carr v. Director of Revenue, 95 S.W.3d 121 (Mo. App. 2002) , and its express application to this factual scenario. In Carr , this court stated, Make no mistake, applied to our case, we cannot say that the "waiting period" requirements were not in fact observed by the police. Only the trial court can make that finding of fact. But if, as is evident in our case, such a finding is made, no further evidence need be adduced in order for the trial court to reinstate an individual's driving license on the basis that the driver had rebutted the Director's prima facie case. Id. at 130 (declining to follow holdings from the Eastern District that noncompliance alone is an insufficient basis for reinstatement). Moreover, this court reasoned: [I]n 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. We believe that such a requirement imposes a relatively insignificant administrative burden on the police, and . . . that its benefits in instilling confidence in the testing results far outweigh any inconvenience. Id. at 129. The Director contends that the trial court's reliance on Carr was misplaced since, the driver in Carr admitted to having engaged in proscribed acts (smoking and eating a piece of candy) in the fifteen minutes prior to being tested. He also urges this court to follow the precedent established by the Eastern and Southern Districts, which hold that a putative defect in the observation period does not render the test invalid absent affirmative evidence that proscribed conduct occurred during this time. See, e.g., Daniels v. Dir. of Revenue , 48 S.W.3d 42, 45 (Mo. App. 2001) (overruled on other

grounds); Hansen v. Dir. of Revenue , 22 S.W.2d 770, 774 (Mo. App. 2000); Holley v. Lohman , 977 S.W.2d 310, 312 (Mo. App. 1998). Because this court unequivocally held in Carr that the fifteen-minute observation period must be strictly complied with, and because the record supports the inference that Coyle was not in the arresting officer's line of sight for the requisite fifteen minutes, the trial court's judgment is affirmed. The state has specifically adopted a fifteen-minute observation period. This court is not at liberty to vary or alter this mandate. In the case at bar, the mandate could have been complied with by merely having the officer extend the observation period from the time he returned from the Coyle's automobile. Point denied. CONCLUSION The fifteen-minute observation period mandated by the Division of Health must be strictly complied with in order for results of a breath test to be admitted into evidence. A finding that this requirement has not been met is, alone, sufficient to rebut the Director's prima facie case in a license revocation matter. Because Coyle was out of the officer's sight for at least five of the seventeen minutes he was observed, the trial court correctly reinstated Coyle's driving privileges. The judgment is affirmed.

All concur. Footnotes: FN1. All statutory references are to RSMo. (2000) unless otherwise indicated. FN2. Coyle's arrest occurred prior to the BAC level being lowered to .08%. FN3. The trial court found, in full, that: the Petitioner was arrested at 1:05 a.m. and that the breathalyzer test was given to the Petitioner at 1:22 a.m. During that 17-minute [sec] period the Trooper placed the Petitioner in his patrol car and few minutes later left him alone, while the Trooper returned to the Petitioner's automobile to speak with the Petitioner's wife. The Trooper then moved the Petitioner's vehicle to another spot in the parking lot so it would be safe and out of harms way. The Trooper returned to the Patrol car a [in] a minimum of five minutes. During this time, the Petitioner was out of his sight. Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.