                        In the Missouri Court of Appeals
                                Eastern District
                                      DIVISION TWO


 TAYLOR L. SHOMAKER,                             )   No. ED102842
                                                 )
           Respondent,                           )   Appeal from the Circuit Court of
                                                 )   St. Charles County
 vs.                                             )
                                                 )   Honorable Matthew E.P. Thornhill
 DIRECTOR OF REVENUE,                            )
                                                 )
           Appellant.                            )   Filed: May 17, 2016


                                         Introduction

       The Director of Revenue appeals the judgment of the Circuit Court of St. Charles County

reinstating the driving privileges of Taylor Shomaker (Driver) whose license was suspended for

driving while intoxicated. On appeal, the Director argues the trial court erred by determining

that the Director failed to present sufficient evidence of compliance with 19 CSR 25-30.051. We

reverse.

                                     Factual Background

       On June 12, 2014, Officer Christopher Sinnokrak pulled over Driver for exceeding the

posted speed limit. While talking with Driver, Officer Sinnokrak smelled a strong odor of

alcohol emanating from Driver’s breath and observed that Driver’s eyes were bloodshot and

glassy. Driver admitted he drank three or four beers that night at a beer tasting party. Officer
Sinnokrak conducted a field sobriety test, and Driver performed poorly. Driver then blew above

.08% on a preliminary breath test and was arrested for driving while intoxicated. At the police

station, Driver agreed to submit to a breath test using an Intox EC/IR II machine. The Intox

EC/IR II had been calibrated on May 28, 2014 using a compressed ethanol-gas mixture supplied

by Intoximeters, Inc.          Driver’s breath test result showed that he had a blood alcohol

concentration of .106%.

         The Director of Revenue suspended Driver’s driving privilege. Driver filed for a trial de

novo in the circuit court. At trial, Driver’s counsel objected to the admission of the Intox EC/IR

II breath test result because the maintenance report indicated that the calibration and

maintenance check had been done using an ethanol-gas mixture supplied by Intoximeters.

Driver argued that Intoximeters, though an approved supplier of ethanol-gas under 19 CSR 25-

30.051(6), was not the actual supplier of the ethanol-gas mixture used to calibrate the Intox

EC/IR II machine used in this case. Driver asserted that Airgas was the true manufacturer and

supplier of the mixture, and that Intoximeter was merely a customer or middleman, because it

bought the ethanol-gas mixture from Airgas and then sold it to law enforcement agencies.

Airgas is not an approved supplier listed under 19 CSR 25-30.051(6).

         The trial court sustained Driver’s objection and found that the Director failed to lay a

sufficient foundation for the admission of the breath test results because it failed to present

sufficient credible evidence of compliance with 19 CSR 25-30.051 and thus also § 577.020.3,

RSMo (2015).1 The trial court found that it did not need to address whether the State met its

burden on the issue of probable cause because there was insufficient evidence that Driver drove


1
  § 577.020.3 states that, “to be considered valid, chemical analysis of the person's breath, blood, saliva, or urine
shall be performed, according to methods approved by the state department of health and senior services, by licensed
medical personnel or by a person possessing a valid permit issued by the state department of health and senior
services for this purpose.”


                                                         2
with a blood-alcohol concentration at or above .08%. The trial court reinstated Driver’s driving

privileges. This appeal follows.

                                       Standard of Review

       In reviewing a court-tried case, this Court will uphold the judgment of the trial court

unless it is not supported by substantial evidence, is against the weight of the evidence, or

erroneously declares or applies the law. White v. Director of Revenue, 321 S.W.3d 298, 307-08

(Mo. banc 2010)(citing Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976)). The nature of

this Court’s review is directed by whether the particular issue is a question of fact or law.

Cortner v. Dir. of Revenue, 408 S.W.3d 789, 792 (Mo. App. E.D. 2013). Administrative rules

are interpreted under the same rules of construction used in interpreting statutes. Trumble v. Dir.

of Revenue, 985 S.W.3d 815, 819 (Mo. App. E.D. 1998). Statutory interpretation is a matter of

law. Bender v. Dir. of Revenue, 320 S.W.3d 167, 169 (Mo. App. E.D. 2010). This Court applies

de novo review to questions of law decided in court-tried cases. Cortner, 408 S.W.3d at 792.

With respect to such questions, we review the trial court’s determination independently, without

deference to the trial court’s conclusions. Id.

                                              Analysis

       The Director argues that the trial court erred as a matter of law in determining that

Intoximeters was not acting as an approved supplier when it sold the ethanol-gas mixture. Driver

has not filed a Respondent’s brief. “While there is no penalty prescribed for the failure to file a

brief, we are required to decide the case without the benefit of that party's authorities and points

of view.” Slaughter v. Dir. of Revenue, 997 S.W.2d 132, 132 (Mo. App. S.D. 1999) (quoting

Fitzgerald v. Dir. of Revenue, 922 S.W.2d 478, 479 n. 3 (Mo. App. S.D. 1996)).




                                                  3
           Driver filed a motion for stay of briefing2 in which he noted that the same issue in this

case was before this Court in two other cases: Gallagher v. Dir. of Revenue, --- S.W.3d ----, 2016

WL 720619 (Mo. App. E.D. 2016) and Hiester v. Dir. of Revenue, --- S.W.3d ----, 2016 WL

720675 (Mo. App. E.D. 2016). In both cases, we had the opportunity to address whether

Intoximeters serves as an approved “supplier” within the meaning of 19 CSR 25-30.051, and in

both cases we held that it does. In Gallagher, we held that “Intoximeters fits squarely within the

plain meaning of supplier, and further proof of the origins of the gas mixture is not required.”

Gallagher, 2016 WL 720619 at *3. In Hiester, we concluded the argument that Intoximeters

was merely a “distributor” to be without merit and held that Intoximeters was a supplier within

the plain meaning of the word. 2016 WL 720675, at *3.

           As Driver pointed out when he requested a stay of briefing in the instant appeal,

Gallagher and Hiester are dispositive of the only point on appeal. Accordingly, we hold that

Intoximeters is an approved supplier under 19 CSR 25-30.051. Therefore, the Director laid a

proper foundation at trial for the admission of the breath sample results. Excluding those results

was error. Appellant’s point is granted.




2
    We denied Driver’s motion for stay.


                                                   4
                                            Conclusion

       We reverse the judgment of the trial court. Because the trial court did not make findings

on whether there was probable cause to arrest Driver, and because probable cause is required to

establish a prima facie case for the suspension of Driver’s license, see McGough v. Dir. Of

Revenue, 462 S.W.3d 459, 463 (Mo. App. E.D. 2015), we remand the case for further

proceedings consistent with this opinion.




                                             _______________________________
                                             Philip M. Hess, Presiding Judge


Gary M. Gaertner, Jr., J. and
Angela T. Quigless, J. concur.




                                                5
