                   In the Missouri Court of Appeals
                           Eastern District
                                           DIVISION ONE

PHILIP LORENZO GALLAGHER,                            )        No. ED102720
                                                     )
        Respondent,                                  )        Appeal from the Circuit Court
                                                     )        of St. Charles County
vs.                                                  )
                                                     )        Hon. Matthew E.P. Thornhill
DIRECTOR OF REVENUE,                                 )
                                                     )        Filed:
        Appellant.                                   )        February 23, 2016


        The Director of Revenue appeals from the judgment of the trial court reinstating

the driving privileges of Philip Gallagher, 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 Gallagher’s blood alcohol content (“BAC”)

was over the legal limit. We agree, and therefore reverse and remand.1

        Gallagher was arrested for driving while intoxicated after a traffic stop, during

which he performed poorly on field sobriety tests, displayed some indicia of intoxication

and told the arresting officer he had “drank a lot.” He agreed to provide a breath sample

on an Alco Sensor IV breath analyzer, the results of which showed his BAC was .152

percent, well over the legal limit of .08 percent.                His license was suspended, and

Gallagher filed a petition for a trial de novo.

1
  This case is being handed down in conjunction with Heister v. Director of Revenue, ED 102985 (Mo.
App. E.D. Feb. 23, 2016), in which this Court affirms the trial court’s admission of the BAC evidence in
that case for reasons identical to those set forth in this Opinion.
       At trial, Gallagher objected to the admission of the breath sample results on the

ground 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 maintenance report, the inspecting officer had 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 accompanying that report indicated that the gas mixture was manufactured by

Airgas Mid America and listed Intoximeters as Airgas’s customer. The trial court found

that Airgas was not an approved supplier under the regulation. 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 Gallagher’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




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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, 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.     Although Airgas manufactured the gas mixture in this case,

Intoximeters was clearly listed on the maintenance report as the supplier. Therefore, the

Director contends, the trial court incorrectly concluded that because Intoximeters was not

the manufacturer, it was not the supplier. We agree.

       Because the trial court’s exclusion of the evidence was based solely on

interpretation of this regulation, the issue before us is a question of law that we review de

novo. See McGough, 462 S.W.3d at 462. Administrative regulations are interpreted

under the same principles of construction as statutes. Id. Our goal is to ascertain the

agency’s intent and give effect thereto by considering the plain meaning of the words

used in the regulation.     Missouri Title Loans, Inc. v. City of St. Louis Board of

Adjustment, 62 S.W.3d 408, 414 (Mo. App. E.D. 2001). We conclude that the plain

meaning of “provided from approved suppliers” requires only proof that the entity that



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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.

        The regulation refers only to the suppliers that provide the gas mixture and says

nothing about manufacturers. See 19 CSR 25-30.051(5)-(6). We must presume this

choice of wording is not meaningless. See State Board of Registration for Healing Arts

v. Boston, 72 S.W.3d 260, 265 (Mo. App. W.D. 2002). Choosing the word “supplier”

and not “manufacturer” is important because suppliers and manufacturers are distinct

entities.    A “supplier” is one “engaged, directly or indirectly, in making a product

available to consumers”; it “may be the seller, the manufacturer, or anyone else in the

chain [that] makes the product available to the consumer.” Black’s Law Dictionary (10th

ed. 2014) (internal quotation marks and citation omitted).         On the other hand, a

manufacturer is one “engaged in producing or assembling new products.” Id. Thus,

Intoximeters need not have produced the product it provided in order to be considered a

supplier 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. See, e.g.,

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,




                                            4
Intoximeters could not be deemed the supplier. There is simply no support for that

conclusion in the plain language of the regulation.

       The evolution of this regulation also demonstrates that the manufacturer of the

material used to verify and calibrate the breath analyzer is no longer relevant for purpose

of laying a foundation for the admission of results from that machine. At one time, the

regulation required breath analyzers to be verified and calibrated using only simulator

solutions, which had to be “certified by the manufacturer of that solution.” See, e.g.,

McDonough v. Director of Revenue, 977 S.W.2d 278, 280 (Mo. App. E.D. 1998)

(affirming exclusion of results where no evidence of solution manufacturer). But that

requirement was removed and replaced with a requirement that the solution be “certified

by the supplier.” Changes thereafter simplified the requirements so that certification was

not needed; rather, the solution needed only to have been “from approved suppliers,” and

that could be proven simply by showing that an approved supplier was listed on the

maintenance report. See Sheridan v. Director of Revenue, 103 S.W.3d 878, 880-81 (Mo.

App. E.D. 2003) (supplier’s name on maintenance report was sufficient evidence that

solution came from approved supplier; reversible error to exclude results solely because

no certificate of analysis also in evidence). In 2012, the Department approved the use of

compressed ethanol-gas mixtures, like that used in this case, to verify and calibrate breath

analyzer machines. Again, the regulation currently requires only that the gas mixture be

“provided from approved suppliers,” and no further certification is required.

       These changes—from requiring certification by the manufacturer to simply

requiring that the product be provided from an approved supplier—may signal that the

Department now entrusts the approved suppliers with ensuring that the solution or gas



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mixture they provide to law enforcement meets Department standards, whether they

manufacture it themselves or get it from another entity. See 19 CSR 25-30.051(5) (A)-

(C) (identifying approved concentration values for gas mixtures). At the very least, the

changes indicate that to lay the foundation for admissibility of a breath sample result, the

Director need only prove that the gas mixture used by law enforcement to maintain the

breath analyzer was provided from one of the approved suppliers listed in the regulation.

       Gallagher argues that because the regulation says “provided from” it refers to the

starting point of the physical movement of the gas mixture into the chain of supply.

Under this interpretation, he contends, we must conclude that the gas mixture in this case

was “provided from” Airgas and, because Airgas is not an approved supplier, the

Director has not met its burden. To find that Intoximeters was the starting point of the

gas mixture, Gallagher continues, when it was merely a distributor (not any different than

a delivery company like Fed Ex) would subvert the meaning of the word “from” and lead

to absurd results. This argument is without merit because the analysis relies entirely on a

particular preposition without regard to the meaning of the substantive term “supplier”

that follows it. As shown above, Intoximeters fits squarely within the plain meaning of

supplier, and further proof of the origins of the gas mixture is not required. Gallagher

also argues that Airgas should at least be considered another supplier of the gas

mixture—albeit from further back in the supply chain—which he claims calls into

question the admissibility of the breath sample results since Airgas is not approved under

the regulation. But proof that every entity in the supply chain was an approved supplier

is simply not required under the regulation.




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       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

Gallagher’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. Therefore, we find the trial court erred in excluding those results. Point

is granted. We need not address the Director’s alternative ground for reversal based on

waiver of Gallagher’s foundational objection.

       The judgment of the trial court is reversed. Gallagher specifically challenged

probable cause for his arrest in his petition for trial de novo and at the conclusion of the

evidence at trial, but the trial court made no findings on probable cause given its

disposition on the BAC evidence.        Therefore, we must remand the case for further

proceedings consistent with this opinion. See 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.




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