Saiaditya Kadapa, Respondent, vs. Director of Revenue, Appellant.

SAIADITYA KADAPA, ) No. ED103012 ) Respondent, ) Appeal from the Circuit Court ) of St. Charles County vs. ) ) Hon. Matthew E. P. Thornhill DIRECTOR OF REVENUE, ) ) Filed: Appellant. ) May 10, 2016

The Director of Revenue appeals from the judgment of the trial court reinstating the driving privileges of Saiaditya Kadapa, which were suspended after his arrest for driving while intoxicated. The Director argues that the trial court erred in excluding from evidence the breath sample results showing Kadapa's blood alcohol content ("BAC") was over the legal limit. We agree and, therefore, reverse and remand. Kadapa was arrested for driving while intoxicated after a traffic stop, during which he performed poorly on field sobriety tests and displayed some indicia of intoxication. He agreed to provide a breath sample on an Intox ED/IR II breath analyzer, the results of which showed his BAC was .141 percent, well over the legal limit of .08 percent. His license was suspended, and Kadapa filed a petition for a trial de novo. At trial, Kadapa objected to the admission of the breath sample results. He argued that the compressed ethanol-gas mixture used to maintain the breath analyzer was not provided from an approved supplier under Department of Health and Senior Services regulations. On the

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maintenance report, the inspecting officer listed "Intoximeters" in the box labeled "Standard Supplier" of the gas mixture. Intoximeters, Inc. is an approved supplier under the regulation. See 19 CSR 25-30.051(6). The certificate of analysis indicated that the gas mixture was manufactured by Airgas and listed Intoximeters as Airgas's customer. The trial court reasoned that because Intoximeters did not manufacture the gas mixture, and instead merely served as a "middleman" between the manufacturer and law enforcement, Intoximeters was not the supplier. On that basis, it excluded the breath sample results and—there being no admissible evidence of Kadapa's BAC—ordered the Director to remove the suspension and reinstate his driving privileges. This appeal follows. The Director has the burden to establish by a preponderance of the evidence a prima facie case for suspension of a driver's license by introducing evidence that there was probable cause for arresting the driver for an alcohol-related offense and that the driver's BAC exceeded the legal limit of .08 percent. McGough v. Director of Revenue, 462 S.W.3d 459, 462 (Mo. App. E.D. 2015). To establish that a driver's BAC was over the legal limit, the Director may introduce evidence of the results of a breath analyzer test. Id. To lay a foundation for admission of those results, the Director must establish that the test was performed using the approved techniques and methods of the Department of Health and Senior Services, by an operator holding a valid permit and on equipment and devices approved by the Department. Id. The Department has promulgated regulations regarding the maintenance of breath analyzers that must be followed in order for the results taken from that machine to be admissible at trial. In relevant part, they provide that the "[c]ompressed ethanol-gas standard mixtures used to verify and calibrate evidential breath analyzers shall be mixtures provided from approved suppliers." 19 CSR 25-30.051(5). There are four approved suppliers listed in the regulation,

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including Intoximeters; Airgas is not an approved supplier. 19 CSR 25-30.051(6). The Director argues that this regulation does not require that the gas mixture be manufactured by one of the approved suppliers listed therein, only that the gas mixture be provided to law enforcement from one of those approved suppliers. This Court recently concluded that "the plain meaning of 'provided from approved suppliers' requires only proof that the entity that provided the gas mixture to law enforcement was an approved supplier; there is no further requirement of proof regarding the manufacturer or any other entity in the chain of supply." Gallagher v. Director of Revenue, 2016 WL 720619 at *2 (Mo. App. E.D February 23, 2016); see also Hiester v. Director of Revenue, 2016 WL 720675 (Mo. App. E.D. February 23, 2016). Thus, Intoximeters need not have produced the gas mixture it provided in order to be considered a supplier of that product under the regulations. It may be reasonable in some cases to infer that if a certain entity manufactured the product, it also supplied it to law enforcement. Gallagher, 2016 WL 720619 at *2 (citing Selix v. Director of Revenue, 985 S.W.2d 380, 383 (Mo. App. E.D. 1999)). But here no such inference is necessary—nor would it be reasonable to draw one—because there was evidence to the contrary. The evidence showed that the gas mixture was manufactured by Airgas, which then sold it to its customer, Intoximeters. Then Intoximeters supplied the gas mixture to law enforcement, the ultimate consumer of this product. The trial court erred in concluding that because it did not manufacture the gas mixture, Intoximeters could not be deemed the supplier. There is simply no support for that conclusion in the plain language of the regulation. See Gallagher, 2016 WL 720619 at *2. Kadapa argues that Airgas should be considered another "supplier" in this case. The presence of an unapproved supplier in the supply chain, he contends, necessitates a finding that

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the gas mixture was provided from an unapproved supplier. This argument was rejected in Gallagher: "proof that every entity in the supply chain was an approved supplier is simply not required under the regulation." Id. In sum, Intoximeters was clearly identified as the supplier that provided law enforcement the gas mixture to verify and calibrate the breath analyzer used to test Kadapa's BAC at the time of his arrest. Intoximeters is an approved supplier under 19 CSR 25-30.051, and therefore proper foundation was laid for the admission of the breath sample results. Excluding those results was error. Point granted. The judgment of the trial court is reversed. Given its disposition on the BAC evidence, the trial court made no findings on whether the Director met its burden to prove probable cause for Kapada's arrest. Therefore, we must remand the case for further proceedings consistent with this opinion. See id. at *3 (citing McGough, 462 S.W.3d at 464-65 n.5).

ROBERT G. DOWD, JR., Presiding Judge

Mary K. Hoff, J. and Roy L. Richter, J., concur.