              IN THE MISSOURI COURT OF APPEALS
                      WESTERN DISTRICT
 CHELSEA F. WEISNER,           )
                  Respondent, )
                               )
 v.                            )             WD81425
                               )
 DIRECTOR OF REVENUE,          )             FILED: February 19, 2019
                    Appellant. )
               Appeal from the Circuit Court of Jackson County
                    The Honorable Susan E. Long, Judge
      Before Division Two: Alok Ahuja, P.J., and Thomas H. Newton
                        and Mark D. Pfeiffer, JJ.
      Respondent Chelsea Weisner was arrested for driving while intoxicated.

After her blood alcohol concentration tested over the legal limit, the Director of

Revenue suspended her driving privileges. Weisner filed a petition for a trial de

novo in the Circuit Court of Jackson County. Following a bench trial, the circuit

court held that the results of the breath test establishing Weisner’s blood alcohol

concentration was inadmissible. The court excluded the test results because the

breath test was conducted in a law enforcement patrol vehicle, which the court

concluded was improper under the regulations promulgated by the Department of

Health and Senior Services (“DHSS”). Because it found that there was no

competent evidence establishing that Weisner had a blood alcohol concentration

above the legal limit, the circuit court set aside the suspension of Weisner’s driving

privileges.

      The Director of Revenue appeals. Consistent with our recent decision in
Baker v. Director of Revenue, No. WD81325, 2019 WL 610383 (Mo. App. W.D. Feb.
13, 2019), we hold that the circuit court erroneously determined that the results of

Weisner’s breath test were inadmissible. We accordingly reverse the judgment of

the circuit court, and remand the case for further proceedings consistent with this

opinion.

                               Factual Background
      At approximately 3:00 a.m. on July 30, 2016, Missouri State Highway Patrol

Trooper Aaron Engelhart observed a car driven by Weisner on westbound Interstate

70 in Jackson County. Weisner’s car failed to stay within a single lane, and Trooper

Engelhart initiated a traffic stop. When Weisner was seated in his patrol car,

Trooper Engelhart noted a strong odor of intoxicants coming from her breath, and

that Weisner’s speech was slurred and rambling. Weisner admitted that she had

consumed two alcoholic beverages, and that her last drink was approximately one

hour earlier.

      Weisner permitted Trooper Engelhart to perform the horizontal gaze

nystagmus (“HGN”) test. Weisner exhibited six clues of intoxication on the HGN

test. Trooper Engelhart then asked Weisner whether she would perform field

sobriety tests, and she indicated that she would. When they exited Trooper

Engelhart’s patrol vehicle to perform the tests, Weisner failed to follow Trooper

Engelhart’s directions, and walked toward the traffic lanes of the highway. Because

he feared that Weisner would not stop and would walk into traffic, Trooper

Engelhart grabbed her arm and pulled her back onto the highway’s shoulder.

Weisner stated that she would not return to Trooper Engelhart’s vehicle. He then

placed her under arrest for driving while intoxicated.

      Once they were again seated in Trooper Engelhart’s patrol vehicle, the

Trooper read Weisner Missouri’s Implied Consent warning, and Weisner agreed to

submit to a breath test. Trooper Engelhart performed a mouth check, and Weisner
stated that she had nothing in her mouth. Trooper Engelhart then observed


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Weisner for twenty-four minutes, during which she did not smoke, vomit, or

introduce anything into her mouth. Weisner then submitted a breath sample,

which was tested using the Alco-Sensor IV with printer (“AS-IV-P”) breath

analyzer. The breath testing occurred inside Trooper Engelhart’s patrol vehicle.

The breath test result indicated that Weisner’s blood alcohol concentration was

.104%.

      The Director of Revenue suspended Weisner’s driving privileges pursuant to

§ 302.505, RSMo. The suspension of Weisner’s driver’s license was upheld following

an administrative hearing. She then petitioned the circuit court for a trial de novo

pursuant to § 302.535, RSMo.

      The circuit court conducted a bench trial on October 3, 2017. When the

Director’s counsel asked Trooper Engelhart to testify concerning the results of the

breath test, Weisner’s counsel objected that performing the breath test in Trooper

Engelhart’s patrol vehicle violated the DHSS’s regulations. The court overruled the

objection, although it indicated that it would reexamine the admissibility issue

following the conclusion of the evidence, based on legal authorities submitted by the

parties. Trooper Engelhart then testified that Weisner’s breath test indicated that

she had a blood alcohol concentration of .104%.
      The circuit court entered its judgment setting aside the suspension of

Weisner’s driving privileges on December 18, 2017. The judgment found that the

testing of Weisner’s breath occurred in an improper location, and that the breath

test results were accordingly inadmissible. The court recognized that 19 C.S.R. 25-

30.050(2) specifies that “[b]reath analyzers are to be used within buildings or

vehicles used for driving-while-intoxicated enforcement.” The circuit court

interpreted this regulation as authorizing breath testing “in a building or in a

vehicle specifically designed for its placement, e.g. a mobile van, ‘BAT’ [Breath
Alcohol Testing] vehicle, etc.” The judgment also noted that the report form


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included in the DHSS’s regulations requires the device operator to certify that “[n]o

radio transmission occurred inside the room where and when the test was being

conducted.” 19 C.S.R. 25-3.060, Form #8 (emphasis added). The court concluded

that “the Officer’s patrol car is not a room as required by the certification on [DHSS]

Form 8.”

       Given its exclusion of the breath test results, the circuit court concluded that

the Director had failed to submit “admissible evidence of [Weisner] having provided

a sample in excess of .08 BAC.” The court accordingly set aside the suspension of

Weisner’s driving privileges.

       The Director of Revenue appeals.1

                                        Discussion
       In order to sustain the suspension of an individual’s driving privileges under

§ 302.505.1, RSMo, the Director of Revenue must prove at a trial de novo that

“(1) the driver was arrested on probable cause for violating an alcohol-related

offense; and (2) the driver's [blood alcohol concentration] exceeded the legal limit of

.08 percent.” Shanks v. Dir. of Revenue, 534 S.W.3d 381, 386 (Mo. App. W.D. 2017)

(citation and internal quotation marks omitted).

       To establish that a driver’s [blood alcohol concentration] was over the
       legal limit, the Director may introduce evidence of the results of a
       breath analyzer test. 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 DHSS, by an operator holding
       a valid permit and on equipment and devices approved by the DHSS.
Roam v. Dir. of Revenue, 559 S.W.3d 1, 3 (Mo. App. E.D. 2018) (citing Gallagher v.

Dir. of Revenue, 487 S.W.3d 24, 26 (Mo. App. E.D. 2016)); see also § 577.037, RSMo.



       1        Weisner did not file a Respondent’s Brief. “‘A respondent is not required to
file a brief, but without one, we must adjudicate the claim of error without benefit of
whatever argument the respondent might have presented.” In the Interest of F.R.D., 481
S.W.3d 32, 34 n.4 (Mo. App. W.D. 2015) (citations and internal quotation marks omitted).


                                              4
      The Director argues that the trial court erred in concluding that Weisner’s

breath test results were inadmissible because the test was conducted in an

improper location.

      We recently addressed this precise issue in Baker v. Director of Revenue, No.

WD81325, 2019 WL 610383 (Mo. App. W.D. Feb. 13, 2019). Baker held that a law

enforcement officer’s patrol vehicle, which was used for general enforcement of

traffic laws, constituted a “vehicle used for driving-while-intoxicated enforcement”

within the meaning of 19 C.S.R. 25-30.050(2), and was therefore a permissible

location for breath testing. Baker, 2018 WL 610383, at *3. In reaching this

conclusion, Baker followed the Eastern District’s decision in Marquart v. Director of

Revenue, 549 S.W.3d 56, 59–60 (Mo. App. E.D. 2018).

      Baker also held that, although the DHSS’s reporting form required the test

administrator to certify that “[n]o radio transmission occurred inside the room

where and when the test was being conducted,” 19 C.S.R. 25-30.060, Form #8

(emphasis added), this certification provision did not alter the locations in which

breath testing could be conducted. Baker held that the certification provision could

be harmonized with 19 C.S.R. 25-30.050(2), by interpreting the word “room” as used

on Form #8 to refer to “a defined or enclosed space.” Baker, 2018 WL 610383, at *5.
Even if the certification provision on Form #8 were interpreted to conflict with the

19 C.S.R. 25-30.050(2), Baker held that the regulation must prevail over the

certification section of the form, because the regulation was the more specific

provision addressing the permissible locations for breath testing. Id., 2018 WL

610383, at *5–*6.

      For the reasons more fully explained in the Baker decision, the circuit court

erred in this case by excluding the breath test results on the basis that the breath

test was conducted in an improper location. We accordingly reverse the judgment of
the circuit court. Even if the breath test was conducted consistently with DHSS


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regulations and was therefore admissible, however, the circuit court as finder of fact

was required to determine whether the breath test results, and the other evidence

offered by the Director, were credible. See, e.g., Messner v. Dir. of Revenue, 469

S.W.3d 476, 482–83 (Mo. App. W.D. 2015). Based on its conclusion that the breath

test results were inadmissible, the circuit court did not assess the probative value or

weight of the Director’s evidence. We remand the case to the circuit court for it to

determine, as fact-finder, whether the Director has met his burden of proof to

sustain the suspension of Baker’s driving privileges.2

                                        Conclusion
       The judgment of the circuit court is reversed, and the case is remanded for

further proceedings consistent with this opinion.




                                                  ___________________________________
                                                  Alok Ahuja, Judge
All concur.




       2        In Baker, we reversed the judgment of the circuit court, and remanded the
case for a new trial. In Baker, the circuit court excluded evidence of the breath test results
during trial, and it was therefore unknown whether the driver would have made additional
evidentiary objections, or would have presented additional evidence to rebut the breath test
results, if the test results had been admitted. We therefore concluded that remand for a
new trial was warranted. The procedural history of this case is different: here, the circuit
court overruled Weisner’s objection during trial, and admitted the breath test results.
Therefore, if Weisner had additional objections or evidence to present, she could—and
should—have done so during the trial. A new trial is unwarranted in this case.


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