                                             In the
                          Missouri Court of Appeals
                                    Western District


                                                  
 MICHAEL STEHWIEN,                                
                                                     WD82574
                            Appellant,               OPINION FILED:
 v.                                               
                                                     February 11, 2020
 DIRECTOR OF REVENUE,                             
                                                  
                           Respondent.            
                                                  
                                                  


                Appeal from the Circuit Court of Lafayette County, Missouri
                         The Honorable Kelly Halford Rose, Judge

                                 Before Division One:
        Thomas N. Chapman, P.J., Mark D. Pfeiffer, and Anthony Rex Gabbert, JJ.


       Michael Stehwien appeals the judgment of the Lafayette County Circuit Court sustaining

the revocation of his driving privilege. He claims in one point on appeal that the breath test

results were not admissible because the breath testing machine was not subjected to proper

maintenance and reporting. The judgment is affirmed.
                                  Factual and Procedural Background1

         On April 29, 2018, at approximately 0320 hours, Trooper Beau Ryun, of Missouri State

Highway Patrol, Troop A, was dispatched to the area of I-70 near the 35 mile marker regarding a

black truck driving all over the roadway and into the median. Deputy B. Hotmer, of the

Lafayette County Sheriff’s Department, observed the truck travel over the center line of the

roadway, and initiated the stop in Lafayette County. Trooper Ryun arrived on the scene shortly

thereafter (at 0328 hours) and contacted the driver, Michael Stehwien.

         Trooper Ryun observed that Stehwien’s eyes were bloodshot, watery, and glassy; that his

speech was slurred; and that there was a strong odor of alcohol coming from his breath.

Stehwien admitted drinking beer, and rated his own intoxication level at a five on a scale of one

to ten (with ten being the most impaired). Trooper Ryun administered the Horizontal Gaze

Nystagmus test (which he scored six of six clues, indicating intoxication) and the preliminary

breath test (that was positive for the presence of alcohol).

         Stehwien was arrested for DWI and transported to the Ray County Sheriff’s Department.

After being advised of the implied consent law, Stehwien agreed to submit to a breath test of his

blood alcohol level. The breath test was performed using the Intox DMT, Serial Number

500052, and was administered by Trooper Ryun, who possessed a Type III permit authorizing

him to operate the Intox DMT. The breath test indicated that Stehwien’s blood alcohol content

(BAC) was .187 percent. Trooper Ryun followed the steps contained in the operational

checklist; certified that there was no deviation from the procedures approved by the Department



1
 “We view the evidence in the light most favorable to the judgment and where the facts relevant to an issue are
contested, deference is given to the circuit court’s assessment of that evidence.” Harvey v. Dir. of Revenue, 371
S.W.3d 824, 826 (Mo. App. W.D. 2012) (internal quotation marks omitted).
                                                          2
of Health and Senior Services; and determined that (to the best of his knowledge) the instrument

was functioning properly.

       The Intox DMT, Serial Number 500052, which was used to administer Stehwien’s breath

test, had been previously transported to Jefferson City, Missouri, where it was upgraded by

replacement of its dry gas regulator. Jimmy Cleveland, who possessed a Type II Permit, replaced

the regulator, adjusted the settings, and conducted a maintenance check of the machine on April

24, 2018. In his April 24, 2018 maintenance report, Cleveland noted: “Standard change

performed. Dry Gas regulator replaced, and settings adjusted. Stepper motor tension adjusted.”

The machine was then transported back to the Ray County Jail.

       Trooper John Tyler Cunningham, who also possessed a Type II Permit, conducted a

maintenance check on the machine the next day, April 25, 2018. The instrument was tested and

certified as operating in compliance with Department of Health and Senior Services regulations.

Trooper Cunningham testified that he did not make any alterations or modification to the

instrument in conducting his maintenance check, and therefore did not note any alterations to the

machine. He merely placed the instrument back in service, and indicated: “Return to Service @

Ray Co Jail.”

       The machine was then used to analyze Stehwien’s BAC on April 29, 2018, which

indicated his blood alcohol content level was .187 percent. The Director of the Missouri

Department of Revenue (“Director” or “Department”) subsequently served Stehwien with a

Notice of Revocation of Driving Privilege. Stehwien requested and received a trial de novo.

       The trial court found that Trooper Ryun followed the steps on the operational checklist

without deviation and in compliance with the Department of Health regulations regarding breath


                                                3
alcohol testing as outlined in 19 Code of State Regulations, Division 25, Chapter 30. The trial

court further found that Stehwien’s breath was tested on an approved instrument by a possessor

of a valid Type III Permit issued by the Missouri Department of Health, that all relevant

Department of Health regulations were followed by the testing officer, and that maintenance on

the breath test instrument was properly performed within 35 days prior to the test of Stehwien’s

breath. The trial court concluded that the breath test result was accurate, reliable, and valid, and

sustained the revocation of Stehwien’s driving privilege. This appeal follows.

                                        Standard of Review

       “As in any court-tried civil case, in a driver’s license suspension case, this Court 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.” Harvey, 371 S.W.3d at

826 (internal quotation marks omitted). “We view the evidence in the light most favorable to the

judgment and where the facts relevant to an issue are contested, deference is given to the circuit

court’s assessment of that evidence.” Id. (internal quotation marks omitted). “When facts are

not contested and the issue is one of law, our review is de novo, and no deference is given to the

trial court’s determination.” Stiers v. Dir. of Revenue, 477 S.W.3d 611, 614 (Mo. banc 2016)

(internal quotation marks omitted).

                                              Analysis

       In his sole point on appeal, Stehwien claims the trial court erred in sustaining the

Director’s revocation of his driving privilege. He claims the breath test machine was not

subjected to proper maintenance and reporting; he concludes that the breath test results were not

admissible.


                                                   4
         “The Department may suspend or revoke a driver’s license upon a determination that the

driver was arrested upon probable cause for driving while intoxicated.” Ridgway v. Dir. of

Revenue, 573 S.W.3d 129, 133 (Mo. App. E.D. 2019) (citing § 302.505.) “The driver may then

seek review of the suspension or revocation through a trial de novo.” Id. (citing § 302.535.1).

“At the trial de novo, the Department must prove by a preponderance of the evidence there

was probable cause to arrest the driver for driving while intoxicated and that the

driver’s blood alcohol concentration [“BAC”] was .08 percent or more.” Id. Stehwien does not

argue that there was a lack of probable cause to arrest him for driving while intoxicated. Instead,

his argument pertains solely to whether the results of the breath test should have been admitted

into evidence and, thus, whether the Department proved that his blood alcohol concentration was

.08 percent or more.

         “Foundational prerequisites for admission of blood alcohol test results are: (1) the test

was performed by following the approved techniques and methods of the Department of Health;

(2) the operator held a valid permit; and (3) the equipment and devices were approved by the

Department.” Kern v. Dir. of Revenue, State of Mo., 936 S.W.2d 860, 861 (Mo. App. E.D. 1997).

“If a proper and timely objection is made to the admission of the blood alcohol analysis, Director

must present proof of a maintenance check performed within 35 days prior to the test.” Id.

(internal quotation marks omitted). 2 “The Department of Health’s regulation requires that


2
  Respondent posits that Stehwien did not preserve his objection to the admission of the breath test results.
However, in the transcript, when Exhibit A (which included the breath test results) was offered into evidence,
counsel for Stehwien indicated “Judge, no objection subject to proper foundation for the maintenance of the breath
test.” Counsel for Stehwien then cross-examined the testifying officer regarding the maintenance report. In closing,
counsel for the Director indicated “The only thing I would say, Your honor, is that obviously the Court sees where
the issue is here with regard to the maintenance…” and goes on to make arguments similar to those on appeal, as did
Stehwien’s counsel. In its judgment the trial court indicated that the “breath test was taken under advisement subject
to a foundation objection regarding whether maintenance was proper.” “All that is required of any objection to
evidence is that the objection be sufficiently clear and definite that the court will understand the reason for the
                                                          5
maintenance checks be performed at intervals not to exceed 35 days and when: (1) a new

instrument is placed into service; (2) the instrument has been put in a new location; or (3) the

instrument has been repaired or recalibrated.” Id. “Maintenance checks are defined as

standardized and prescribed procedures used to determine that a breath analyzer is functioning

properly and is operating in accordance with the operational procedures established by the

Department of Health.” Id. (internal quotation marks omitted). “The check is designed to ensure

the machine is operating properly when a blood alcohol analysis is performed.” Id. at 862.

“Consequently, the purpose of the maintenance check requirement is to guarantee reliability of a

particular test result.” Id.

         The testimony at trial, explicitly found to be credible by the trial court, was that the

breath test machine had been upgraded in Jefferson City by Jimmy Cleveland, who then

conducted a maintenance check on April 24, 2018. In his maintenance report, Cleveland noted

the changes to the Intox DMT, Serial Number 500052, and noted that the instrument operated

satisfactorily and within established limits.

         Trooper John Tyler Cunningham also conducted a maintenance check on the machine on

April 25, 2018; and in his report, noted its return to service; and certified it as operating in

compliance with Department of Health and Senior Services regulations. Four days later (on

April 29, 2018) the subject breath test machine was used to examine Stehwien’s blood alcohol

content.



objection.” Williams v. Bailey, 759 S.W.2d 394, 397 (Mo. App. S.D. 1988). The trial court clearly understood that
Stehwien objected to admission of the breath test results on the basis that the machine was not properly maintained.
The Department now argues that the issue was waived because Stehwien did not later object to the admission of the
maintenance reports. “[W]here, as here, it was mutually understood that appellant did not intend to repudiate his
prior objection, this Court will likewise acknowledge its continued validity.” State v. Baker, 103 S.W.3d 711, 717
(Mo. banc 2003). Objection to the admission of the breath test results was preserved for appellate review.
                                                         6
        Stehwien complains on appeal that the maintenance report written by Trooper

Cunningham did not list what Cleveland did to the breath machine before the machine was put

back into service. Stehwien claims that Trooper Cunningham left changes to the machine out of

the in-service report and thereby violated the regulations.

        However, Trooper Cunningham testified that he made no changes to the machine; and

that he merely received the machine back after Cleveland had made changes to the machine in

Jefferson City. Given that, Trooper Cunningham performed a maintenance check on the machine

and indicated that the machine was being put back into service. He did not list any changes in

his April 25, 2018 maintenance report because he made no changes to the machine.

        Stehwien argues that Cleveland’s April 24, 2018 maintenance report is not a valid

maintenance report, because he did not put the machine back into service. Stehwien asserts that

the maintenance report is required to be filled out only after repairs or service were completed

and the machine was put back into service. He concludes that Trooper Cunningham, as the

person who put the machine back into service, was required to identify the changes that

Cleveland made to the machine.

        The regulations do not support Stehwien’s argument. Instead, 19 C.S.R. 25-30.031(3)

states in relevant part:

        (3) A Type II permittee shall perform maintenance checks on breath analyzers
        under his/her supervision at intervals not to exceed thirty-five (35) days. The
        permittee shall retain the original report of the maintenance check and submit a
        copy of the report so that it shall be received by the department within fifteen (15)
        days from the date the maintenance check was performed. In addition,
        maintenance checks shall be completed when—

        (A) A new instrument is placed into service; or

        (B) The instrument has been serviced, repaired, or recalibrated.

                                                  7
(emphasis added). This regulation requires that such maintenance checks be performed at

intervals not to exceed 35 days and when: (1) when a new instrument is placed into service; (2)

when the instrument has been put in a new location; or (3) when the instrument has been repaired

or recalibrated. Kern, 936 S.W.2d at 861. 3

           Thus, Cleveland’s April 24, 2018 maintenance report that was completed after the

machine was serviced was a valid maintenance report as required under 19 C.S.R. 25-

30.031(3)(B). It, appropriately, included a report of the services completed.

           The report Trooper Cunningham completed on April 25, 2018 was also a valid

maintenance report, as required under 19 C.S.R. 25-30.031(3). Cunningham’s maintenance

report was completed upon placing the subject machine back into service, within 35 days of the

previous report, and less than 35 days before Stehwien was tested (on April 29, 2015).



3
    19 CSR 25-30.031(7) requires the use of Maintenance Report #1 for Intox DMT machines:
          For the maintenance checks referred to in sections (3)-(5) of this rule, the appropriate maintenance
          report form for the specific instrument being checked shall be used--
          (A) When performing a maintenance check on the Intox DMT, the report incorporated in the
               instrument software shall be used (see Report No. 1 included herein for example)...

    Report #1 provides, in part, as follows:
          Complete this report at the time of the regularly monthly preventive maintenance check (not to
          exceed 35 days).
          Complete this report whenever the instrument is served or repaired and whenever it is placed into
          service.

Stehwien asserts that this portion of the approved form (Report #1) imposes additional restrictions on when it should
be completed, and, in particular, indicates that it should not be completed upon completion of the service or repair,
and should only be completed after service or repair and return to service. We disagree. To the contrary, the
approved form (Report #1) indicates that there is an obligation to complete the maintenance report “whenever the
instrument is serviced or repaired” and a separate obligation to again perform a maintenance report “whenever it is
placed into service.” These are distinct instances when the maintenance report should be completed – after service
or repair, and again after the machine is placed in service. This is entirely consistent with the requirements of 19
CSR 25-30.031(3) as to when maintenance reports should be completed. It is also consistent with the purposes of
the entire regulation -- to ensure that there would be a report completed upon service or repair, by the person (in this
instance Cleveland) familiar with those repairs; and that there should also be a maintenance report completed upon
placing the equipment into service (in this instance by Cunningham) to ensure the equipment remains properly
calibrated.

                                                            8
       “The Supreme Court years ago concluded that the only maintenance check that matters—

for purposes of establishing the foundational requirement that the breath test was performed on a

reliable machine—is the one within 35 days before the breath test.” Carey v. Dir. of Revenue,

514 S.W.3d 679, 682 (Mo. App. E.D. 2017) (citing Sellenriek v. Director of Revenue, 826 S.W.2d

338, 340 (Mo. banc 1992)). “In reaching that conclusion, the Court noted that the plain language

of 19 CSR 25-30.031(3) requires the checks must be performed every 35 days, but that did not

mean the Director must present evidence of every one of those checks ever performed on the

relevant machine[.]” Id. Stehwien conceded at oral argument that the relevant maintenance

form is the one immediately preceding the use of the machine to render the BAC at issue. He

also conceded that the maintenance form does not have to list all repairs or adjustments from

prior maintenance checks.

       “A maintenance report showing that a maintenance check was performed within 35 days

prior to the driver’s breath test is evidence of the foundational requirement that the test was

performed according to approved techniques and methods on a reliable machine.” Id. (internal

quotation marks omitted). This requirement was met in this case. The trial court did not err in

admitting the BAC results.

                                            Conclusion

       The judgment is affirmed.

                                                      /s/   Thomas N. Chapman
                                                      Thomas N. Chapman, Presiding Judge


All concur.



                                                  9
