               In the Missouri Court of Appeals
                                 Western District

GRANT LOUIS MESSNER,                     )
                            Respondent, )
v.                                       )           WD77506
                                         )
DIRECTOR OF REVENUE,                     )           FILED: July 21, 2015
                              Appellant. )

      APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY
               THE HONORABLE ROBERT L. TROUT, JUDGE

       BEFORE DIVISION THREE; KAREN KING MITCHELL, PRESIDING JUDGE,
         LISA WHITE HARDWICK AND ANTHONY REX GABBERT, JUDGES

      The Director of Revenue appeals a circuit court judgment reinstating Grant

Messner’s driving privileges following an administrative suspension for driving while

intoxicated. The Director contends the judgment is unsupported by substantial

evidence and erroneously applies the law. For reasons explained herein, we find no

error and affirm the judgment.

                         FACTUAL   AND   P ROCEDURAL HISTORY

      On June 20, 2013, at approximately 1:30 a.m., Officer Daniel Lawrence

observed Grant Messner’s vehicle weaving and crossing the center line of the road.

Officer Lawrence stopped the vehicle and immediately smelled the odor of alcohol
emanating from Messner. After Messner failed several field sobriety tests, Officer

Lawrence arrested him for driving while intoxicated (DWI).

        Messner was taken to the Lake Lotawana police station. After observing

Messner for a minimum of 15 minutes to ensure that no smoking or oral intake of

any material occurred, Officer Lawrence attempted to administer a breath test on

the Intoxilyzer 5000. The device printed an evidence ticket at 2:17 a.m. which

read: “INVALID TEST – SUBJECT DID NOT PROVIDE VALID SAMPLE.” A few

minutes later, Officer Lawrence administered another test. The device printed an

evidence ticket at 2:21 a.m. which reported a result of .166% as Messner’s blood

alcohol content (BAC).

        After an administrative hearing, the Director suspended Messner’s driving

privileges pursuant to Section 302.505, RSMo.1 Messner filed a petition for trial

de novo in the circuit court as provided by Section 302.535.

        During the trial de novo, the Director presented certified records from the

Department of Revenue’s file, including Officer Lawrence’s narrative incident

report, the Alcohol Influence Report, and the evidence ticket from the second

breath test showing Messner’s BAC at .166%. The records did not include the

“invalid test” printout generated from the first breath test attempt and there was

no mention of the first attempt in Officer Lawrence’s reports. Likewise, Officer

Lawrence did not mention the first attempt during his direct testimony.


1
 All statutory references are to the Revised Statutes of Missouri 2000, as updated by the 2013 Cumulative
Supplement, unless otherwise indicated.


                                                        2
      On cross-examination, Officer Lawrence acknowledged that the additional

breath test had been administered but was left out of his reports and direct

testimony. Officer Lawrence said that on his first attempt to obtain a breath

sample, Messner was “either refusing or arguing” and that the machine “timed out”

as Messner had not blown into the machine. Officer Lawrence testified that he

inadvertently omitted this information from his reports.

      Messner offered as evidence the printout from the first attempt to obtain a

breath sample, which showed the error message “INVALID TEST – SUBJECT DID

NOT PROVIDE VALID SAMPLE.” He also offered as evidence the operator’s

manual for the Intoxilyzer 5000. Contrary to Officer Lawrence’s assertion that the

device timed out, Messner testified that he did, in fact, blow into the machine the

first time the test was administered which resulted in the “INVALID TEST –

SUBJECT DID NOT PROVIDE A VALID SAMPLE” error message. Messner’s

counsel pointed out that had the machine actually timed out as Officer Lawrence

claimed, it would have displayed “INSUFFICIENT TEST” as indicated on page 9 of

the operator’s manual.

      Because the evidence showed that Messner did not provide a valid breath

sample on the first attempt, his counsel argued that Officer Lawrence was required

to conduct a second 15-minute observation period between the two test attempts,

and that his failure to do so rendered the second test results unreliable. The

Director argued that the manual only specifically required the officer to wait an

additional 15 minutes after the device generated an “invalid sample” reading, but

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that no such period was mentioned in the manual in connection with an “invalid

test” reading.2

        Following the trial de novo, the circuit court issued a judgment reinstating

Messner’s driving privileges. In its findings of fact and conclusions of law, the

court found that the Director’s evidence was “not credible, in that [the] second

breath test result was not reliable as there was no 15 minute observation period

after Intoxilyzer 5000 generated message of ‘INVALID TEST – SUBJECT DID NOT

PROVIDE VALID SAMPLE’ on first test.” The court further stated that “Officer’s

actions contradicted Intoxilyzer 5000 operator’s manual.”                          The Director appeals.

                                            STANDARD OF REVIEW

        We review the trial court’s judgment in a Section 302.535 license

suspension case as in any other court-tried civil case. Johnson v. Dir. of Revenue,

411 S.W.3d 878, 881 (Mo. App. 2013). 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. White v. Dir. of Revenue,

321 S.W.3d 298, 307–08 (Mo. banc 2010). To set aside a judgment as against

the weight of the evidence, we must have a firm belief that the judgment is wrong.

Id. at 308. Where the facts relevant to an issue are contested, we give deference


2
  Page 10 of the manual contains a table with explanations for various error messages the device might display and
the corresponding corrective action the officer is to take to remedy the error. If the device displays the “INVALID
SAMPLE” error code, the explanation/corrective action table states “Check mouth, wait an additional 15 minutes,
try one or more tests.” For the “INVALID TEST – SUBJECT DID NOT PROVIDE VALID SAMPLE” code that was
generated from Messner’s first attempt, the table states, “A complete and valid breath sample was not provided in
the time allotted.” However, as explained infra, the table on page 10 does not specify the corrective action to be
taken in the event the device generates this particular “invalid test” error message.


                                                        4
to the circuit court’s assessment of that evidence. Bruce v. Dep’t of Revenue, 323

S.W.3d 116, 119 (Mo. App. 2010). “A trial court is free to disbelieve any, all, or

none of that evidence.” Johnson, 411 S.W.3d at 881 (citation omitted).

                                     ANALYSIS

       In Point I, the Director contends the judgment must be reversed because

there is no substantial evidence to support the circuit court’s finding that Officer

Lawrence’s actions contradicted the operator’s manual for the Intoxilyzer 5000.

However, as Messner points out, the Director had the burden of proof but failed to

present credible evidence that the Officer’s actions complied with the manual.

Based on the court’s credibility finding that the Officer did not act properly, we find

no error in its determination that the breath test results were unreliable.

       To suspend Messner’s license, the Director is required to “present evidence

that, at the time of the arrest: (1) the driver was arrested on probable cause for

violating an alcohol-related offense; and (2) the driver’s BAC exceeded the legal

limit of .08 percent.” O’Rourke v. Dir. of Revenue, 409 S.W.3d 443, 447 (Mo.

App. 2013). The Director has the burden of establishing the grounds for

revocation or suspension by a preponderance of the evidence and “may introduce

evidence of a breathalyzer test to establish that the driver’s BAC exceeded the

legal limit.” Id.

       In this case, there was no dispute that the Director met the burden of

proving the probable cause element. The Director further sought to prove that

Messner’s BAC exceeded the legal limit by presenting the results from his second

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breathalyzer test. Messner challenged the reliability of the second test by arguing

that Officer Lawrence failed to conduct another 15-minute observation period after

the first breath test attempt failed. The circuit court agreed that the test results

were unreliable because the “Officer’s actions contradicted [the] Intoxilyzer 5000

operator’s manual.”

      The Director argues that this finding is unsupported by the evidence because

the manual only recommends an additional 15-minute observation period when the

device generates the “INVALID SAMPLE” error message. The Director points out

that the initial test generated the “INVALID TEST – SUBJECT DID NOT PROVIDE

VALID SAMPLE” error message, for which the manual does not specifically require

an additional 15-minute observation period.

      We observe that the operator’s manual is silent as to what corrective action

should be taken when the Intoxilyzer 5000 generates the “INVALID TEST –

SUBJECT DID NOT PROVIDE VALID SAMPLE” error message. On page 10 of the

manual, under the “Explanation and Corrective Action” column, it reads only that

“[a] complete and valid breath sample was not provided in the time allotted.”

(Emphasis added). Aside from defining the error message, the manual does not

explain the action to be taken by the officer to correct such a reading. By contrast,

the manual gives detailed steps the officer should follow in the event that the

“INVALID SAMPLE” error message is generated.

      A similar lack of guidance as to the proper corrective action was addressed

in Martin v. Dir. of Revenue, 142 S.W.3d 851 (Mo. App. 2004). In Martin, the

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initial breath test of a driver registered an “invalid sample.” Id. at 853. The officer

then gave the driver a second test less than five minutes after the first. Id. at 854.

At the time, the relevant Missouri regulations were silent as to what procedure

should be followed when an “invalid sample” reading was obtained. Id. Under

those circumstances, the trial court heard expert testimony from both parties as to

whether an additional 15-minute observation period was required after the initial

“invalid sample” reading to ensure that mouth alcohol had time to dissipate. Id. at

855–57. The trial court found Director’s evidence less credible than the driver’s,

and that an additional 15-minute observation period was required to ensure the

reliability of the test results. Id. at 857. On appeal, the Southern District held that

the “trial court’s determinations were within the prerogative afforded it as the trier

of fact.” Id.

      Here, as noted, the table on which Director relies (for the proposition that no

15-minute observation period is required) is silent as to what action should be

taken when the “INVALID TEST – SUBJECT DID NOT PROVIDE VALID SAMPLE”

error message is displayed. Neither Messner nor the Director introduced expert

testimony regarding whether such an error message would require an additional

observation period to ensure the reliability of subsequent breath tests. The Director

merely pointed to the table on page 10 to establish that the manual did not

specifically recommend a 15-minute observation period under these circumstances.

Messner elicited testimony from Officer Lawrence that had the machine actually

timed out as he claimed, it would have instead displayed the “INSUFFICIENT TEST”

                                           7
error message. The Director had the opportunity to present testimony from an

officer holding a Type II permit to explain this discrepancy, but failed to do so. The

Director bears the burden of production and persuasion in driver’s license

suspension cases. White, 321 S.W.3d at 304. After considering the evidence

presented from both parties, the circuit court concluded that the Director’s

evidence was not credible. “Because [Messner] bore neither the burden of

persuasion nor production in this proceeding, the judgment in [his] favor required

no evidentiary support.” Johnson, 411 S.W.3d at 885.

      Even if the Director had presented evidence to explain any distinctions or

discrepancies among the error messages on page 10 of the manual, there is

another provision of the Intoxilyzer 5000 manual that supports the court’s

credibility determination regarding the Officer’s actions. On page 7, the manual

recommends that the officer “should complete an Operational Checklist for each

separate test conducted.” (Emphasis added). The second step of that checklist is

that the subject be observed for at least 15 minutes. Because the trial court was

free to infer from the conflicting testimony that two tests were administered, see

Bruce, 323 S.W.3d at 119, the manual’s plain language suggests that two

checklists should be completed and, thus, two separate 15-minute observation

periods. By failing to complete an additional observation period, Officer Lawrence’s

actions contradicted this portion of the Intoxilyzer 5000 operator’s manual that




                                          8
requires a checklist to be completed for each test.3 Accordingly, the court’s finding

that the breath test results were unreliable is supported by substantial evidence in

the record. Point I is denied.

          In Point II, the Director argues that the circuit court erroneously declared or

applied the law because no additional 15-minute observation period is legally

required by recently amended DHSS4 regulations or the Intoxilyzer 5000’s

operator’s manual. Based on our holding in Point I, we conclude that the court did

not err in applying the provisions of the operator’s manual because the manual

could be interpreted to require an observation period for each test. With regard to

the DHSS regulations, we further conclude that the recent amendments cited by

the Director are not instructive because they relate only to the admissibility of

breathalyzer tests and not the reliability of the testing procedure or results.

          Section 577.026.1 provides that breath tests, “to be considered

valid . . . shall be performed according to methods and devices approved by the

[DHSS].” From this statute, the Director argues that because the DHSS has the

sole authority to create regulations regarding testing methods, “the trial court

3
  Citing Smock v. Dir. of Revenue, 128 S.W.3d 643 (Mo. App. 2004), the Director argues that Messner’s multiple
attempts to complete a breath test are considered to be only one test under Missouri law. However, Smock is
inapposite, as it involved the application of Section 577.020.2, which provides for a driver’s implied consent to “not
more than two” chemical tests. The driver had twice unsuccessfully attempted to complete a breath test. Id. at
645. The driver then refused to submit to a blood test. Id. In upholding the driver’s license suspension, the
Southern District concluded merely that the officer was authorized to request more than one type of statutory
test—the two failed breath test attempts were considered one type of test for purposes of Section 577.020.2.
Here, the Intoxilyzer 5000 operator’s manual is concerned only with the administering of the breath test, and no
other type of test authorized by statute. Accordingly, it recommends that the officer complete an operational
checklist for each separate breath test conducted. Moreover, the Intoxilyzer 5000 operational checklist would
have no applicability to a subsequent blood test, as ensuring the absence of mouth alcohol would have no effect
on the results of the test.
4
    DHSS is the Missouri Department of Health and Senior Services.

                                                          9
should not need to look elsewhere to determine whether a test is valid.” In other

words, as long as the officer complies with the DHSS regulations, the BAC test

results are not only admissible, but also credible. However, such an argument

relies upon a presumption that the Director’s evidence is true. This appears to be

an improper attempt to revert to the standard applied to driver’s license suspension

cases before the Missouri Supreme Court decided White v. Dir. of Revenue, 321

S.W.3d 298 (Mo. banc 2010). Before White, courts gave the Director’s

uncontroverted evidence a presumption of validity, requiring the driver to present

affirmative evidence to rebut that presumption. Id. at 306. In White, however, the

Court eliminated this presumption, confirming that the burden of proof was on the

Director. Id. at 304.

      The director’s burden of proof has two components—the burden of
      production and the burden of persuasion. The burden of production is
      a “party’s duty to introduce enough evidence on an issue to have the
      issue decided by the fact-finder, rather than decided against the party
      in a peremptory ruling . . .” The burden of persuasion is defined as
      “[a] party’s duty to convince the fact-finder to view the facts in a way
      that favors that party.”
      ...
      When the burden of proof is placed on a party for a claim that is
      denied, the trier of fact has the right to believe or disbelieve that
      party’s uncontradicted or uncontroverted evidence. If the trier of fact
      does not believe the evidence of the party bearing the burden, it
      properly can find for the other party.

Id. at 304–05 (citations omitted). Thus, under White, “there is no presumption

that the Director’s evidence establishing a prima facie case is true, and there is no

burden shifted to the driver to produce evidence to rebut such a presumption.”

Harvey v. Dir. of Revenue, 371 S.W.3d 824, 829 (Mo. App. 2012). To the extent

                                         10
the Director relies upon the presumed validity of her evidence, her argument should

be rejected.

      In any event, even if we were to look only to the amended DHSS regulation

cited by the Director, 19 C.S.R. 25-30.060(7), it would be of no benefit in this

case. In relevant part, this regulation provides that a 15-minute observation period

“is deemed to be sufficient for the dissipation of any mouth alcohol to a reasonable

degree of scientific certainty.” Our courts have recognized that this regulation sets

forth the procedures to be followed to satisfy the foundational requirements for

admission of the breath test results. O’Rourke, 409 S.W.3d at 447. Thus, the

Director’s argument that the DHSS regulations do not require an additional 15-

minute observation period in order for the test results to be valid is misdirected

because it “conflates the admissibility of evidence with the credibility of evidence.”

Johnson, 411 S.W.3d at 883. Here, there is nothing in the record to indicate that

the trial court excluded the .166% BAC test results from evidence. “Instead, it

appears the trial court simply did not believe that result was reliable. As noted

above, we defer to that factual determination.” Id.

      Finally, the Director argues that previous cases recognizing that the trial

court was free to determine the credibility of the test results, even if they were

obtained in accordance with DHSS regulations, should be reexamined in light of

this recent amendment to the DHSS regulations. The Director points out that the

amended regulation, which became effective on December 30, 2012, explicitly

defines the purpose of the initial 15-minute observation period as ensuring “to a

                                          11
reasonable degree of scientific certainty” that any mouth alcohol has a chance to

dissipate. From this language, the Director asserts that trial courts can no longer

find a test result to be scientifically unreliable if an initial 15-minute observation

period has been performed. However, it appears that the Director is again

attempting to assert that her evidence is entitled to a finding of credibility as a

matter of law, in contravention of our Supreme Court’s holding in White eliminating

such a presumption.5 Furthermore, the Director’s argument again conflates the

admissibility of evidence with the weight to be afforded that evidence. “[E]ven if

the results of a breathalyzer test may be admissible, as with any scientific test, it is

still the job of the finder of fact to determine the test result’s credibility or

reliability.” Collins v. Dir. of Revenue, 399 S.W.3d 95, 104 (Mo. App. 2013)

(Witt, J., concurring) (emphasis added).

         Here, the Director made a prima facie case but Messner contested the

validity of the Director’s evidence. Under White, no presumption arose that the

Director’s evidence was true. The Director had the burden to produce evidence

and persuade the circuit court that her evidence was true. After evaluating the

evidence, the circuit court found that the Director’s evidence was not reliable

because the BAC test results were obtained without an additional 15-minute




5
 Moreover, the regulation’s stated purpose for the amendment reads: “Prosecuting attorneys have requested that
these procedures be included as a rule so they can be introduced in court to show that operators of breath
analyzers have adhered strictly to the operating procedures set forth and approved by [DHSS].” 2012 MO REG
TEXT 297025 (NS). Whether the officer “adhered strictly to the operating procedures” is primarily relevant for
purposes of the Director laying a proper foundation for the admission of the breath test results. See Collins v. Dir.
of Revenue, 399 S.W.3d 95, 99–100 (Mo. App. 2013).

                                                        12
observation period to confirm the dissipation of mouth alcohol. In so doing, the

trial court did not erroneously declare or apply the law. Point II is denied.

                                     CONCLUSION

       We affirm the circuit court’s judgment reinstating Messner’s driving

privileges.


                                               ____________________________________
                                               LISA WHITE HARDWICK, JUDGE

ALL CONCUR.




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