               SUPREME COURT OF MISSOURI
                                         en banc

KRISTIN NICOLE STIERS,                             )
                                                   )
       Respondent,                                 )
                                                   )
vs.                                                )      No. SC94840
                                                   )
DIRECTOR OF REVENUE,                               )
                                                   )
       Appellant.                                  )

           APPEAL FROM ST. CHARLES COUNTY CIRCUIT COURT
                The Honorable Matthew E.P. Thornhill, Judge

                             Opinion issued January 12, 2016

       The Director of Revenue appeals from the trial court’s judgment excluding the

results of Kristin Nicole Stiers’ breath test and reinstating her driving privileges after

those privileges were revoked by the Director. The trial court found the Director failed to

lay a proper foundation for admission of the breath test results because the machine on

which the breath test was conducted was calibrated using only one standard solution

whereas tests utilizing three standard solutions of different strengths were required by

19 CSR 25-30.051, which was the relevant department of health and senior services

(DHSS) regulation in effect at the time of the breath test. 1

       The Director argues that the trial court erred in excluding the results of Ms. Stiers’



1
 Unless otherwise indicated, statutory citations refer to RSMo 2000, updated through
RSMo Supp. 2013.
breath test. This Court rejects the Director’s arguments that the regulation in question

was intended merely to list solutions that could be used and that this Court should infer

that only one solution is required to be used in calibrating breath analyzers from the fact

that only one solution is to be reported per form used. Multiple forms may be submitted.

This Court finds that 19 CSR 25-30.051, titled “Breath Analyzer Calibration and

Accuracy Verification Standards,” sets out the standards to be employed in calibrating

breath analyzers in subsection 2, which in 2013 stated, “The standard simulator solutions

used shall have a vapor concentration within five percent (5%) of the following values:

(A) 0.10%; (B) 0.08%; and (C) 0.04%.”

       This Court also rejects the Director’s alternative arguments that the regulation

simply sets out a procedural rule governing admissibility of breath test results at trial and

that revisions to the regulation that the DHSS adopted between the time of arrest in 2013

and trial in 2014 should retrospectively validate an otherwise improperly conducted

calibration. Section 577.037, not a DHSS regulation, sets out the standards for admission

of breath test results. The regulations governing breath tests on a properly calibrated

machine serve multiple purposes, including providing a basis for suspension or

revocation of a driver’s license. That is true regardless of whether the driver later files an

administrative appeal or seeks de novo review in circuit court. The standard by which the

validity of that calibration is judged necessarily must remain the same from the time of

the initial suspension through the time that de novo review is undertaken. It would be

strange indeed were the law otherwise, and the initial suspension and review were

undertaken under one version of a regulation but the court’s de novo review of that
suspension were considered under a later-adopted regulation intended to correct flaws in

the original regulation. The regulation in effect at the time of the breath test governs.

Under this regulation, the calibration was not valid. The judgment is affirmed.

I.     STATEMENT OF FACTS AND PROCEDURAL HISTORY

       On July 12, 2013, Lake St. Louis Police Officer Gerald Crowley stopped

Ms. Stiers’ vehicle after he observed her swerving between lanes. At Officer Crowley’s

request, Ms. Stiers took a field sobriety test, which indicated impairment. She was placed

under arrest for driving while intoxicated and taken to the Lake St. Louis Police

Department. There, Ms. Stiers agreed to take a breath test on an Alco-Sensor IV (breath

analyzer), which measured a .172-percent blood alcohol concentration (BAC). Officer

Crowley then issued Ms. Stiers a notice of revocation of her driving privileges pursuant

to section 302.520.1, which states:

       Whenever the chemical test results are available to the law enforcement
       officer while the arrested person is still in custody, and where the results
       show an alcohol concentration of eight-hundredths of one percent or more
       by weight of alcohol in such person's blood … the officer, acting on behalf
       of the department, shall serve the notice of suspension or revocation
       personally on the arrested person.

(Emphasis added).

       Revocation of Ms. Stiers’ driving privileges was stayed temporarily while she

sought administrative review of the suspension under section 302.530. The suspension

was upheld at the administrative hearing, and the department of revenue issued its final

order revoking Ms. Stiers’ driving privileges based on the results of the breath test.

Ms. Stiers then timely filed a petition for a trial de novo in the circuit court under section


                                              3
302.535.1. 2 Ms. Stiers’ trial was held on April 10, 2014. The Director offered the results

of Ms. Stiers’ breath test as evidence that her BAC was above .08 percent at the time of

her arrest. Ms. Stiers objected to the admission of the breath test on the ground that the

breath analyzer used to administer her breath test was not calibrated in accordance with

the version of 19 CSR 25-30.051.2 in effect at the time of her 2013 arrest. At that time,

subsection 2 stated that “the standard simulator solutions used shall have a vapor

concentration within five percent (5%) of the following values: (A) 0.10%; (B) 0.08%;

and (C) 0.04%.”

       Because it is undisputed that the breath analyzer used in her case was calibrated

using only one solution, Ms. Stiers argued that her breath test results were invalid. The

trial court agreed, rejecting the Director’s argument that 19 CSR 25-30.051.2 did not

govern which solutions should be used and refusing to rule that, in context, the word

“and” really meant “or.” The trial court also rejected the Director’s argument that the

validity of the breath test should be determined by the emergency revision to the

regulation that DHSS promulgated in 2014, shortly before trial, which required that only

one solution be used to calibrate a breath analyzer. The court excluded the breath test

results and found that, without them, the Director failed to meet the State’s burden of

providing sufficient credible evidence that Ms. Stiers drove with a BAC above .08

percent. Following an opinion by the court of appeals, this Court granted transfer. Mo.



2
   “Any person who has received a notice of suspension or revocation may make a request
within fifteen days of receipt of the notice for a review of the department’s determination
at a hearing.” § 302.530.1. “Any person aggrieved by a decision of the department may
file a petition for trial de novo by the circuit court.” § 302.535.1.
                                                 4
Const. art. V, § 10.

II.    STANDARD OF REVIEW

       “[Appellate courts] review the trial court’s judgment in a … license suspension or

revocation case like any other court-tried civil case.” Johnson v. Dir. of Revenue, State,

411 S.W.3d 878, 881(Mo. App. 2013). “In appeals from a court-tried civil case, the trial

court’s judgment will be affirmed 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). “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.” Johnson, 411 S.W.3d at 881.

       Here, the Director does not contest any factual findings made by the trial court.

Instead the Director alleges that either the trial court applied the wrong regulation or the

trial court misinterpreted the regulation it applied. “Statutory interpretation is an issue of

law that this Court reviews de novo.” Finnegan v. Old Republic Title Co. of St. Louis,

Inc., 246 S.W.3d 928, 930 (Mo. banc 2008). “Regulations are interpreted according to

the same rules as statutes.” Dep’t. of Soc. Servs., Div. of Med. Servs. v. Senior Citizens

Nursing Home Dist. of Ray Cnty., 224 S.W.3d 1, 9 (Mo. App. 2007). Therefore, because

this case involves the application and interpretation of a regulation, this Court reviews the

trial court’s decision de novo.

III.   THE 2013 VERSION OF 19 CSR 25-30.051 REQUIRED THAT BREATH
       ANALYZERS BE CALIBRATED WITH THREE SOLUTIONS

       Section 577.037 requires that breath tests be performed “… in accordance with

methods and standards approved by the state department of health and senior services.”
                                         5
These methods and standards are set out in 19 CSR 25-30.011 to 25-30.080. Regulation

19 CSR 25-30.051.2 as promulgated by DHSS at the time of Ms. Stiers’ breath test

stated:

          (2) Standard simulator solutions, used to verify and calibrate evidential
          breath analyzers, shall be solutions from approved suppliers. The standard
          simulator solutions used shall have a vapor concentration within five
          percent (5%) of the following values:
                 (A) 0.10%;
                 (B) 0.08%; and
                 (C) 0.04%.

(Emphasis added).

          “When interpreting a statute, the primary goal is to give effect to legislative intent

as reflected in the plain language of the statute.” State v. Moore, 303 S.W.3d 515, 520

(Mo. banc 2010). “This Court’s primary rule of statutory interpretation is to give effect

to legislative intent in the plain language of the statute at issue.” Parktown Imports, Inc.

v. Audi of America, Inc., 278 S.W.3d 670, 672 (Mo. banc 2009); Dep’t. of Soc. Servs.,

Div. of Med. Servs., 224 S.W.3d at 9 (“Regulations are interpreted according to the same

rules as statutes.”). The regulation’s use of the conjunction “and” on its face seems to

require that three simulator solutions set at different concentration levels be used to

calibrate each breath analyzer.

          The Director argues, however, that considered in the context of other regulations,

the intent of the regulations as a whole is to require only one solution be used during

calibration. The Director concedes that the regulation just quoted uses the word “and”

when listing the three types of solutions that “shall” be used. The Director specifically

acknowledges that because 19 CSR 25-30.051.2 joins together the list of the three

                                                6
solutions with the word “and,” the regulation cannot itself be read to require use of only a

single solution rather than three solutions. Indeed, in the context of interpreting contracts

such as insurance policies, this Court has recognized that “… while ‘and’ can mean ‘or’,

most commonly ‘and’ means simply ‘and’.” Burns v. Smith, 303 S.W.3d 505, 511 (Mo.

banc 2010). “The first meaning of ‘and’ … is not ‘or’ but ‘along with or together with’

or words of comparable meaning.” Id. As this Court noted in Hawkins v. Hawkins, 511

S.W.2d 811 (Mo. 1974), in holding that the word “and” in an ordinance was used as a

conjunctive and did not mean “or”:

       The construction … is never resorted to except for strong reasons and the
       words should never be so construed unless the context favors the
       conversion … as where it must be done in order to effectuate the manifest
       intention of the user; and where not to do so would render the meaning
       ambiguous, or result in an absurdity; or would be tantamount to a refusal to
       correct a mistake.

Id. at 813; accord, Strayer v. State, 339 S.W.3d 621, 625-26 (Mo. App. 2011). Similarly,

here, nothing in the language itself requires that the word “and” be interpreted to be used

any other way than its ordinary plain meaning as a conjunctive.

       Instead, the Director argues that 19 CSR 25-30.051.2 does not actually address

what solutions must be used in calibrating a breath analyzer.          Rather, it is just a

preliminary regulation that lists the kinds of solutions that are approved for use in testing

of breath analyzers. Of course, if the Director were correct that the provision stating that

testing is to be performed using solutions 1, 2 and 3 is not the provision governing what

solutions must be used, it begs the question as to which regulation then sets out that

information. The Director says the proper limitation to one test can be inferred from a

reading of 19 CSR 25-30.051.2 in pari materia with related regulations. While none of
                                         7
those other regulations actually say that only a single solution need be used, the Director

and the dissent say this should be read into them because they discuss tests and solutions

in the singular.

       While this Court agrees that regulations dealing with the same subject should be

read in pari materia, see e.g. State ex rel. Evans v. Brown Builders Elec. Co., 254 S.W.3d

31, 35 (Mo. banc 2008), this Court disagrees that consideration of these other regulations

supports the Director’s or dissent’s argument. Neither of the regulations they point to –

19 CSR 25-30.031 and 19 CSR 25-30.060 – states that only one solution needs to be used

in calibrating a breath analyzer. Rather, they set out the rules regarding such matters as

who is permitted to perform calibration procedures, when they should be performed, and

the use of a certain form contained in the regulations to record the maintenance test

results. 3 That a regulation addresses use of each solution one at a time or references a

duty to report each result separately cannot change the express requirement in 19 CSR

25-30.051.2 that all three solutions be used.

       Similarly, the Director’s and dissent’s reliance on the language used in the form

attached to one of the regulations does not aid their argument. They suggest that a

heading in a line halfway down the Alco-Sensor IV reporting form appended to 19 CSR

25-30.031 provides the direction that only a single standard solution is to be used. A

direction in the middle of a form used to record a test, however, is an odd place to set out


3
  The Director notes, for instance, that 19 CSR 25-30.031 refers to “report” in the
singular in the course of describing the duties of Type II permittees. An intent to require
a single solution be used rather than the three solutions expressly required by 19 CSR 25-
30.051.2 cannot be inferred from such reference in the course of a regulation addressing
permittees rather than the tests themselves.
                                              8
the general rules for conducting the tests in the first instance. Normally, the governing

law is set out in a regulation’s text. Even then, the Director’s argument is based on

inference, for the line in question, under the heading “calibration check,” states simply

that “only one standard is to be used per maintenance report.” Alco-Sensor IV with

Printer Maintenance Report, Report #7, 19 CSR 25-30.031. While this line clearly tells

the tester how to fill out the form – only one standard solution’s tests are to be included

per each maintenance report – it says nothing about how many solutions in total must be

used, nor does it state that only a single maintenance report is to be used per calibration,

as one would expect if the form so intended. Indeed, had that line in the form been

intended to direct the use of only one standard solution in calibrating a breath analyzer, it

would have said “Only one standard is to be used per calibration” rather than “Only one

standard to be used per maintenance report.” As written, this line simply means that each

solution must be reported on its own form.

       Indeed, the only regulation to address the number of solutions that must be used is

19 CSR 25-30.051.2. And, that regulation does not merely “list” the solutions that may

be used as the Director suggests. Rather, it requires use of more than a single solution,

stating “[t]he standard simulator solutions used shall have a vapor concentration within

… the following values: …” and then listed three values connected by the word “and.”

Id. (emphasis added).

       In this context, the word “shall” “unambiguously indicates a command or

mandate.” Frye v. Levy, 440 S.W.3d 405, 408 (Mo. banc 2014). “To suggest any other

meaning is to ignore the plain language of the statute.” Id. Regulation 19 CSR 25-

                                             9
30.051.2 directs or requires that the solutions listed shall be used. In conjunction with the

word “and,” the plain language of the regulation requires that three solutions be used to

calibrate breath analyzers. A line taken out of context from a form cannot change the

meaning of this clear language requiring use of three solutions. DHSS indirectly so

recognized when it decided in 2014 to no longer require the use of three solutions. How

did it accomplish this change? By amending 19 CSR 25-30.051.2 to replace the word

“and” with “or.”    That is all that was necessary to reduce the number of required

solutions from three to one. But if the Director were correct that this subsection merely

lists available solutions, then this is not the subsection DHSS would have changed.

       Finally, this Court rejects the Director’s argument that it would not be good policy

to require three standards when one would do, so the 2014 amendment should be read

simply to “clarify” that one standard was always intended. It is up to the state legislature

to determine policy, not this Court. But the Court notes that Ms. Stiers has identified at

least five other states that require more than one solution to be used in the testing of

breath analyzers. 4 While DHSS later may have determined that the requirement of a

three solution calibration standard was too onerous, that does not negate the fact that until

the regulation was amended in 2014, three solutions were required. “A change in a statute

is intended to have some effect, and the legislature will not be charged with having done



4
  The five states are: New Jersey, See State v. Chun, 943 A.2d 114, 135 (N.J. 2008);
Washington, Washington State Patrol, Breath Test Program, Chapter 3, pg. 16
(November 20, 2014); 67, Pa. Code § 77.26(b)(1) (1989); Virginia, Virginia Department
of Forensic Science, Breath Alcohol Procedures Manual, 21-22 (Jan. 7, 2014); Texas,
Texas Breath Alcohol Testing Program, Standard Operating Guidelines, pg. 7, 13 (Aug.
24, 2015).
                                          10
a meaningless act. [W]hat the legislature intended is to be concluded from the language

which it used.” State v. Swoboda, 658 S.W.2d 24, 26 (Mo. banc 1983) (internal citation

and quotation marks omitted). The trial court did not err in holding that the calibration

failed to comply with the requirements of the 2012 version of 19 CSR 25-30.051.2 in

place at the time of Ms. Stiers’ breath test. 5

IV.     THE TRIAL COURT CORRECTLY APPLIED THE REGULATION IN
        PLACE AT THE TIME OF THE BREATH TEST

       Recognizing that the Court might find that the regulation in effect at the time of

arrest required use of three solutions, the Director alternatively argues that the propriety

of the breath test should be governed by the version of 19 CSR 25-30.051 in effect at the

time of Ms. Stiers’ trial. The revised version of this regulation was adopted by DHSS on

an emergency basis effective February 28, 2014, long after the calibration of the breath

analyzer in June 2013, Ms. Stiers’ breath test and arrest on July 12, 2013, and her

administrative hearing in November 2013, but prior to her April 10, 2014, trial. The

Director says 19 CSR 25-30.051 is a procedural regulation governing the admission of

breath test results at trial, so this Court should apply the regulation in effect at the time of

the trial to retrospectively validate the breath analyzer calibration even if that calibration


5
  The dissent also notes that in publishing the regulation at issue in 2012, the Director
said in the state register that its purpose was to add a concentration level available to be
used. This statement does not purport to address whether all three concentrations must be
used; that is left to the regulation itself, of course. The language quoted is not part of the
regulation itself, however. It is at best legislative (or, more accurately, regulatory)
history and cannot contradict the language of the regulation itself. Similarly, the fact that
the Director in publishing the 2014 amendment to the regulation said that it was intended
to “clarify” prior law cannot retroactively change prior law simply because that is what
the Director now has decided would be a better regulation.

                                                  11
was not conducted in accordance with the regulation in effect at the time of the

calibration, breath test and arrest, license suspension or administrative review. This

Court rejects the Director’s argument.

       In arguing which version of 19 CSR 25-30.051.2 governs admission of the breath

test results, the Director cites various court of appeals cases addressing when rules are

procedural and substantive and when they apply retrospectively and prospectively. The

Director and the court of appeals cases on which the Director relies, however,

misunderstand the nature of the regulation at issue.

       There is no question that the rules of evidence in effect at the time of trial govern.

There is also no question that the rules of civil procedure in effect at the time of trial

govern the procedural aspects of the trial. This is true even though, necessarily, the trial

itself concerns the effect of certain antecedent facts – here, the validity of a breath test

conducted some nine months previously.            The legislature has provided the rules

governing admission of breath test results in section 577.037. Section 577.037.1 states

that a breath test showing a BAC above .08 percent is prima facie evidence that a person

was intoxicated at the time the test was taken. Section 577.037.4 states that, for section

577.037.1 to apply, the breath test “shall have been performed as provided in sections

577.020 to 577.041 and in accordance with methods and standards approved by the state

department of health and senior services.”        § 577.037.4.   Section 577.020.3 states:

“Chemical analysis of the person’s breath, blood, saliva, or urine to be considered valid

pursuant to the provisions of sections 577.019 to 577.041 shall be performed according to

methods approved by the state department of health and senior services by licensed

                                             12
medical personnel or by a person possessing a valid permit issued by the state department

of health and senior services for this purpose.”

       In other words, section 577.037 sets out the rules governing admission of breath

test results and one of the requirements for admission is that the breath test be validly

performed in accordance with DHSS regulations. While the rules of evidence govern the

procedure for admission of evidence and so the rules in effect at trial are followed, that is

an entirely different issue from whether the regulations governing how to determine

whether a breath analyzer was validly calibrated at the time it was used to test a driver’s

blood alcohol were followed. 6

       The validity of a breath test necessarily must be determined and fixed at the time

the test is conducted. To argue otherwise ignores the fact that the calibration is not

simply used as a factor when considering the admissibility of a breath test result in court.

To the contrary, it is used as the basis for suspending or revoking an individual’s license.

This suspension or revocation occurs regardless of whether the person later files an

administrative appeal or whether the person files suit in court if the suspension or

revocation is affirmed on administrative review. A test result over the legal limit has a



6
 The underlying regulation setting out procedures governing calibration is not a rule of
evidence; it is a rule governing the technical requirements for calibration. The rules
governing admissibility, as noted, are set out in the statutes. To the extent that the court
of appeals cases on which the Director relies, including but not limited to State v.
Kummer, 741 S.W.2d 285, 289 (Mo. App. 1987); Eckhoff v. Dir. of Revenue, 745 S.W.2d
815, 817 (Mo. App. 1988); DeClue v. Dir. of Revenue, State of Mo., 945 S.W.2d 684, 686
(Mo. App. 1997); Trumble v. Dir. of Revenue, 985 S.W.2d 815, 817 (Mo. App. 1998);
Tate v. Dir. of Revenue, 982 S.W.2d 724, 726 (Mo. App. 1998); Hunt v. Dir. of Revenue,
10 S.W.3d 144, 149 (Mo. App. 1999); Roberson v. Vincent, 290 S.W.3d 110, 114-15 (Mo.
App. 2009), incorrectly state or imply otherwise, they are in error.
                                            13
substantive effect on the person’s license to drive, and it is because of that effect that the

calibration of the machine used to test that person’s breath must be validly performed.

That is why section 577.020.6 provides, “Upon the request of the person who is tested,

full information concerning the test shall be made available to such person,” including “If

the test was administered by means of a breath-testing instrument, the date of

performance of the most recent required maintenance of such instrument.” It would be

pointless to provide the person with information about how the test was conducted and

about the maintenance procedures followed if those procedures could be changed by

DHSS after the fact. In fact, changing the rules after the fact is what the Director admits

DHSS attempted here when it realized that its regulation might be held to require three

solution calibrations when its officers often were using only one solution. While such an

opportunity might be convenient, neither the statutes nor regulations issued under it

purport to give DHSS such unique retroactive authority to negate any prior mistakes

made in maintenance of its machines used for breath tests.

       Indeed, such a procedure would lead to absurd results. This case provides a good

example. At the time of Ms. Stiers’ breath test, the 2012 version of 19 CSR 25-30.051.2

was in effect, requiring calibration with three solutions. The officer tested Ms. Stiers’

breath and issued Ms. Stiers a suspension of her license because the test showed that she

had a BAC over the legal limit. Ms. Stiers appealed that suspension to the administrative

agency. That agency held a hearing. At the time of the hearing, the 2012 regulation was

still in effect. The department necessarily determined the propriety of the calibration of

the breath analyzer under that regulation, and (incorrectly, as discussed above) found the

                                             14
test valid even though the calibration did not comply with the 2012 regulation’s

requirements.

       Ms. Stiers petitioned for de novo review in circuit court, as allowed by section

302.535.1, in November 2013. The State requested a number of extensions, which

delayed the trial date until April 2014. In the interim, DHSS adopted an emergency

revision to 19 CSR 25-30.051.2 changing the word “and” to “or” in that subsection so

that thereafter the regulation would require testing with only one solution.

       The Director then argued at Ms. Stiers’ trial that the just-revised regulation should

be applied. In other words, the Director argued that a different standard of validity

should be utilized at trial than the standard utilized when the calibration, the breath test,

the arrest and the administrative appeal occurred – in fact, in this case, it would be a

different standard than was in effect when Ms. Stiers filed her petition for a trial in circuit

court. Indeed, in the absence of her agreement to the extensions granted the Director, it is

a different standard than would have applied had the trial been properly held.

       Even more importantly, it is a different standard than would have been applied to

any other person stopped on the same date as Ms. Stiers and tested using the same

machine by the same officer but whose trial occurred prior to February 28, 2014. One

would lose their right to drive; the other would not.

       An invalid test cannot be made valid after the fact by changing the rules governing

validity. The trial court properly applied the version of 19 CSR 25-30.051 in place at the




                                              15
time of Ms. Stiers’ breath test. 7

V.     CONCLUSION

       The plain language of the 2012 regulation requires that to comply with section

577.037, a breath analyzer must have been tested using three testing solutions. The

Director failed to lay a proper foundation for the admission of the results of Ms. Stiers’

breath test by showing that the calibration of the breath analyzer complied with 19 CSR

25-30.051 as required by section 577.037. The judgment of the trial court is affirmed.



                                                  _________________________________
                                                    LAURA DENVIR STITH, JUDGE

Fischer, Draper and Teitelman, JJ., concur;
Wilson, J., dissents in separate opinion filed;
Breckenridge, C.J., and Russell, J., concur in
opinion of Wilson, J.




7
  Ms. Stiers also argues that as amended in 2014, 19 CSR 25-30.051.8 expressly requires
that the validity of the test be determined under the regulation in effect at the time of the
arrest. That subsection states, “Maintenance reports completed prior to the effective date
of this rule shall be considered valid under this rule if the maintenance report was
completed in compliance with the rules in effect at the time the maintenance was
conducted.” By its terms, this section addresses only tests that were valid when
performed. Here, this Court has found that the test was not valid when performed.
Subsection 8 therefore, does not apply.
                                             16
               SUPREME COURT OF MISSOURI
                                        en banc

KRISTIN NICOLE STIERS,                            )
                                                  )
       Respondent,                                )
                                                  )
vs.                                               )      No. SC94840
                                                  )
DIRECTOR OF REVENUE,                              )
                                                  )
       Appellant.                                 )

                                    Dissenting Opinion

       I agree that the trial court applied the correct version of 19 CSR 25-30.051(2) in

this case, but I write separately because nothing in this regulation requires that breath

analyzers be calibrated with three different solutions. Instead, the Department of Health

and Senior Services regulations require only that the three solutions approved for use in

calibrating breath analyzers be obtained from approved suppliers and that they conform

to stated standards (i.e., that they not vary more than five percent from the intended

strength). The Director laid a proper foundation for admission of the breath test results,

and the trial court should not have excluded those results from evidence. Accordingly, I

would vacate the judgment of the trial court and remand.

       The fundamental flaw in Ms. Stiers’ argument is that 19 CSR 25-30.051(2) does

not address how many different solutions must be used in testing a breath analyzer.

Instead, this regulation merely identifies which solutions may be used. As discussed
below, 19 CSR 25-30.060(3) is the only regulation that expressly addresses how the

particular breath analyzer at issue in this case (i.e., the Alco-Sensor IV) is to be tested,

and nothing in this regulation (or the form promulgated with it) can fairly be read to

require the use of all three different strength solutions.

       Even though 19 CSR 25-30.051 does not address how many solutions must be

used to test a breath analyzer and 19 CSR 25-30.060 does, Ms. Stiers’ argument rests

solely on the fact that the three strength solutions approved for use under 19 CSR 25-

30.051(2) are separated by the word “and,” which Ms. Stiers insists must be read to mean

that all three approved solution strengths must be used every time any breath analyzer is

tested. This argument ignores the language of the rest of 19 CSR 25-30.051, the

language of other relevant regulations, and the obvious intent of these regulations as

demonstrated by both the prior and subsequent versions of 19 CSR 25-30.051.

       The regulation on which Ms. Stiers builds her argument, 19 CSR 25-30.051,

states in pertinent part:

       (1) Standards used for the purpose of verifying and calibrating breath
           analyzers shall consist of standard simulator solutions or compressed
           ethanol-gas standard mixtures.

       (2) Standard simulator solutions, used to verify and calibrate evidential
           breath analyzers, shall be solutions from approved suppliers. The
           standard simulator solutions used shall have a vapor concentration
           within five percent (5%) of the following values:
              (A) 0.10%;
              (B) 0.08%; and
              (C) 0.04%

                                          ***

       (5) Compressed ethanol-gas standard mixtures used to verify and calibrate
           evidential breath analyzers, shall be mixtures provided from approved
                                             2
           suppliers. The compressed ethanol-gas mixtures used shall have a
           concentration within five percent (5%) of the following values:
             (A) 0.10%;
             (B) 0.08%; and
             (C) 0.04%

                                        ***

19 CSR 25-30.051 (effective Dec. 30, 2012) (emphasis added).

       The first subsection refers to standard “solutions” and ethanol-gas “mixtures”

because it is addressing the “[s]tandards used for the purpose of verifying and calibrating

breath analyzers,” plural. The first sentences of the second subsection then require that

“[s]tandard simulator solutions, used to verify and calibrate evidential breath analyzers,

shall be solutions from approved suppliers.” Again, the plural “solutions” matches the

use of the plural “breath analyzers.”

       The second sentence of subsection (2) is where Ms. Stiers myopically focuses her

argument. She contends this sentence means: “The standard simulator solutions used

shall have vapor concentrations within five percent (5%) of … 0.10%; … 0.08%; and …

0.04%.” [Emphasis added.] But that is not what the regulation says. Instead, it reads:

“The standard simulator solutions used shall have a vapor concentration within five

percent (5%) of … 0.10%; … 0.08%; and … 0.04%.” 19 CSR 25-30.051(2) (emphasis

added). Grammatically, requiring the plural “solutions” to have “a [singular] vapor

concentration” is ambiguous. Requiring “a [singular] vapor concentration” to be within

five percent of the three listed values is not only grammatically ambiguous, it is

mathematically impossible.



                                              3
The regulation may be ambiguous, but it is admirably consistent. While some breath

analyzers are tested using standard simulator solutions, others are tested using standard

compressed ethanol-gas mixtures. Like subsection (2), subsection (5) requires these

mixtures to be obtained from approved suppliers. Subsection (5) then goes on to state:

“The compressed ethanol-gas mixtures used shall have a concentration within five

percent (5%) of … 0.10%; … 0.08%; and … 0.04%.” 19 CSR 25-30.051(5) (emphasis

added). Again, as in subsection (2), the plural “mixtures” are required to have “a

[singular] concentration” and that concentration must be within five percent of three

different values. This, too, is grammatically ambiguous and mathematically impossible.

       Ms. Stiers asks this Court to adopt the only construction of this regulation that is

patently absurd and with which it will be practically impossible to comply. She ignores

the plural “standard simulator solutions” in subsection (2) and “compressed ethanol-gas

mixtures” in subsection (5), which are used throughout the regulation and which refer to

all solutions (or mixtures) from all approved providers that may be used to test any of the

multitude of the approved breath analyzers in use around the state because they are

inconsistent with her proposed construction. By the same token, Ms. Stiers ignores the

plain statement in subsection (2) that all solutions “shall have a [singular] vapor

concentration” and the equally plain statement in subsection (5) that all mixtures “shall

have a [singular] concentration” because these phrases cannot be reconciled with her

construction either.

       Instead, Ms. Stiers’ argument focuses solely on the word “and” separating the

three approved values in subsections (5) and (7), and she insists that this Court give this

                                              4
word a conjunctive meaning such that all breath analyzers must be tested at all three

different values. If 19 CSR 25-30.051(2) and (5) addressed how many tests each breath

analyzer must pass, this argument may be worthy of further attention. But they do not.

19 CSR 25-30.051(2) and (5) address what solutions or mixtures may be used and which

providers may supply them. Nothing more. And, even if these subsections did address

the number of solutions or mixtures that must be used in testing each breath analyzer

(which they do not), the regulation would be an exercise in futility because no solutions

can have “a [singular] vapor concentration” – and no ethanol-gas mixtures can have “a

[singular] concentration” – that is within 5 percent of the three stated values. Ms. Stiers

fails to explain why the DHSS would adopt a regulation with which no operator and no

test solution could comply, and this Court should not adopt any construction that leads to

such an absurd result.

       To the contrary, this Court should adopt a construction that gives effect to all of

the language of the regulation, to the regulation as a whole, and to the surrounding

regulations. Giving the word “and” its disjunctive meaning accomplishes this. 1 Read

this way, subsections (2) and (5) state that standard solutions or mixtures must be used,

they must be obtained from approved suppliers, and they must be one of the three listed

strengths. Nothing is added to the regulation, and nothing is taken away.




1
   This Court has long noted that “the word ‘and’ is sometimes construed to mean ‘or’ … where
not to do so would render the meaning ambiguous, or result in an absurdity; or would be
tantmount to a refusal to correct a mistake.” Hawkins v. Hawkins, 511 S.W.2d 811, 813 (Mo.
1974).
                                              5
           This construction also is consistent with the language of 19 CSR 25-30.060(3)

which, unlike 19 CSR 25-30.051, expressly addresses the question of how the standard

solutions are to be used in testing the Alco-Sensor IV breath analyzer at issue in this case.

It provides: “When using the Alco-Sensor IV with printer, the procedures on the form

included herein shall be performed and the form shall be completed.” 19 CSR 25-

30.060(3) (emphasis added). The form promulgated with the regulation addresses several

tests that must be conducted regularly by the operator and states in pertinent part:


    CALIBRATION CHECK – (ONLY ONE STANDARD IS TO BE USED PER MAINTENANCE REPORT)

    Run three tests using a standard solution. All three tests must be within +/- 5% of the standard value and must

    have a spread of .005 or less. Check the box corresponding to the standard solution being used. (PRINTOUT

    ATTACHED).

             0.100% STANDARD – MUST READ BETWEEN 0.096 AND 0.105% INCLUSIVE

             0.080% STANDARD – MUST READ BETWEEN 0.076% AND 0.084% INCLUSIVE

             0.040% STANDARD – MUST READ BETWEEN 0.038% AND 0.042% INCLUSIVE

    TEST 1  ___________________        TEST 2  ________________           TEST 3  _________________




           The requirements of this section of the required form are inconsistent with

Ms. Stiers’ “three tests using three different strength solutions” construction in many

ways. 2 First, and in the only language in this part of the form that DHSS saw fit



2
   Ms. Stiers is not entitled to disregard the language of this form any more than she may
disregard the language of any other part of the rule. Forms promulgated with a regulation are no
less a part of that regulation than the text of the rule, and any valid construction of one must
account for the other. Cf. Neal v. Neal, 941 S.W.2d 501, 504 (Mo. banc 1997) (“the trial court is
required to determine and find for the record the presumed correct child support pursuant to Rule
88.01, utilizing Civil Procedure Form No. 14”).
                                                            6
to emphasize with bold letters, the top line of this section of the form states that only one

standard is to be used per maintenance report. As if that were not clear enough, the next

sentence instructs the operator to run “three tests using a [singular] standard solution,”

not three different solutions of different strengths. Finally, to avoid any confusion, the

form requires the operator to identify which strength solution was used and to report all

three test scores to ensure that each result was within .005 of that single strength (a feat

that would be impossible if three tests were conducted using three different strengths).

       In an effort to avoid the plain meaning of the required DHSS form, Ms. Stiers

argues that operators must be required to file three copies of the form, one for each of the

three strength solutions she contends must be used to test to each Alco-Sensor IV breath

analyzer. 3 But this argument ignores the language of 19 CSR 25-30.060, which is the

only regulation in which the testing requirements are addressed expressly. When using

the Alco-Sensor IV, this regulation requires that “the procedures on the form [singular]



3
   Ms. Stiers attempts to bolster her “three form” argument by claiming that six other states
require multiple tests with different solution or vapor concentrations. Other states’ procedures
have no relevance to the proper construction of the DHSS regulations at issue here, particularly
when the other state’s regulation unambiguously states – as the DHSS regulations do not – that
three tests be done with three separate strength solutions. See 67 Pa. Code § 77.26 (“Calibration
testing a breath test device shall consist of conducting three separate series of five simulator
tests. One of the series of tests shall use simulator solution designed to give a reading of .10%.
One of the series of tests shall use simulator solution designed to give a reading of .05%. The
last series of tests shall use simulator solution designed to give a reading above .10% which is a
multiple of .05%.”) (emphasis added). Ms. Stiers’ argument is further weakened by reliance on
other states’ maintenance or operations manuals, which were not part of the record below nor
provided to this Court by citation or otherwise. To the extent these materials could be located, it
appears that some of them actually undercut Ms. Stiers’ “three tests on three forms” construction
because they expressly require “only one test” when testing breath analyzers from this
manufacturer. See Washington BTP Technical Manual, pp. 35, 37 (BTPTechM rev. 003) (“If the
[results are within stated limits] … only one test is necessary”).
                                                7
included herein shall be performed and the form [singular] shall be completed.” 19 CSR

25-30.060(3) (emphasis added). No fair reading of this requirement supports Ms. Stiers’

argument that multiple forms need be filed. 4 To indulge such an argument, the Court

must add words that are not there in order to find a three-form reporting requirement that

does not exist.

       Ms. Stiers’ construction of 19 CSR 25-30.051(2), which is based solely on

inferences she draws from the conjunctive use of the word “and,” not only is inconsistent

with the express testing requirements in 19 CSR 25-30.060, but it also is inconsistent

with the way in which “and” is used in 19 CSR 25-30.050. This rule identifies the

“approved breath analyzers” that may be used under the DHSS regulations. Among the

list of approved machines are “Alco-Sensor IV with printer and Intox EC/IR II,” both of

which are manufactured by “Intoximeters, Inc.” 19 CSR 25-30.050(1) (emphasis

added). 5 As with 19 CSR 25-30.051(2), the use of the word “and” in 19 CSR 25-

30.050(1) means that both machines are approved for use, but it does not mean that both

machines must be used in each test. Instead, the operator is free to select any one of the




4
   In addition, Ms. Stiers’ “three form” approach is contradictory to all of the other tests required
on the form in the DHSS regulation, only a portion of which is quoted above. These steps
include checking the digital readouts, the printer, the time and date display, and ensuring that the
Alco-Sensor is at the proper temperature. No conceivable purpose would be served by making
the operator repeat these tests (and others) three times in the process of completing the three
forms that Ms. Stiers’ construction would require.
5
   This regulation goes on to list other approved breath analyzers, i.e, the “BAC DataMaster and
DataMaster DMT” by a second manufacturer and the “Intoxilyzer, Model 5000 and Intoxilyzer,
Model 8000” by a third. 19 CSR 25-30.050(1) (emphasis added). It would be absurd to suggest
that operators must buy both of a manufacturer’s breath analyzers merely because they are con-
nected by the word “and.” Instead, the obvious intent of the regulation is to note that each manu-
facturer has two approved machines, but the operator is free to choose between them.
                                                  8
approved machines, just as 19 CSR 25-30.051(2) permits the operator to select any one of

the approved standard simulator solution strengths.

       Finally, even though the intent of 19 CSR 25-30.051 is plain when read in light of

its purpose and in harmony with the surrounding regulations, confirmation that

Ms. Stiers’ construction is incorrect is readily available when prior and subsequent

versions of 19 CSR 25-30.051 are consulted. From July 30, 2004, until December 30,

2012, 19 CSR 25-30.051(2) provided:

       (1) Standard simulator solutions, used to verify and calibrate evidential breath
           analyzers at the 0.10% or 0.100% level, shall be solutions from approved
           suppliers.

       (2) Standard simulator solutions, used to verify and calibrate evidential breath
           analyzers at the 0.04% or 0.040% level, shall be solutions from approved
           suppliers.

This regulation is simple and unambiguous. Two solution strengths are approved, and

each must be obtained from the list of approved suppliers. There is no suggestion that

both strengths must be used and no evidence that anyone ever construed the regulation to

impose such a requirement.

       On July 2, 2012, the DHSS published a proposed amendment to 19 CSR

25-30.051(2) to promulgate the language of the regulation at issue in this case. Ms. Stiers

insists that the purpose of this amendment was to do away with the prior scheme in which

operators could test breath analyzers with either of two approved solution strengths and

replace it with a scheme in which operators must use all three approved solution strengths

each time they test a machine. The stated purpose of the 2012 amendment, however,

does not support her argument. Instead, it states:

                                             9
       PURPOSE: This amendment changes the name of the division, chapter,
       title and purpose of the rule and adds compressed ethanol-gas mixtures as
       an option for accuracy checks and instrument calibrations in addition to
       standard simulator solutions. It also makes it necessary for simulators to be
       recalibrated annually and adds 0.08% as another concentration level
       available for performing accuracy checks and instrument recalibrations.

Missouri Register, Vol. 37, No. 13, at pp. 1027-28 (July 2, 2012) (emphasis added).

       When trial courts began to throw out breath analyzer reports based on the “three

tests using three different solution strengths” construction that Ms. Stiers now urges this

Court to adopt, the DHSS again amended 19 CSR 25-30.051(2) and (5) to prevent such

absurd results. This amendment replaced the unduly scrutinized and unfairly emphasized

word “and” in both subsections with the word “or.” The purpose of this change was

clearly stated:

       PURPOSE: This amendment clarifies which standard simulator solutions
       of the listed concentrations may be used in verifying and calibrating breath
       analyzers, as well as the annual checks required on simulators used in
       conjunction with the standard stimulator solution.

Missouri Register, Vol. 38, No. 20, at pp. 1625-26 (October 15, 2012) (emphasis added).

       In the face of an unambiguous intent to allow operators to test breath analyzers

with either (but not both) of the approved solution strengths before December 2012 and

the unambiguous intent to “clarify” that operators may test breath analyzers with any (but

not all three) of the approved solution strengths again in February 2014, there simply is

no room to argue that the DHSS actually intended to require operators to test breath

analyzers with all three of the approved solution strengths during the intervening 14

months.



                                             10
       If, during this interim period, the plain language of 19 CSR 25-30.051(2) required

three separate tests using three separate solution strengths, I would enforce the regulation

regardless of what I might think the DHSS may have meant but mistakenly failed to say.

But that is not this case. 19 CSR 25-30.051(2) does not address what tests must be done;

it addresses what solution strengths are approved and where those solutions must be

obtained. At worst, 19 CSR 25-30.051(2) was ambiguous during the 14 months between

the unambiguous prior version and the equally unambiguous current version. No fair

effort to divine the actual intent of 19 CSR 25-30.051(2) during this interval could ever

reach the conclusion Ms. Stiers asks this Court to reach.

       Accordingly, this Court should not interpret 19 CSR 25-30.051(2) to impose

additional testing requirements that are not to be found in prior or subsequent versions of

this regulation, are not germane to the express purpose of 19 CSR 25-30.051(2) itself,

and are inconsistent with the plain language and obvious intent of surrounding

regulations. Instead, the only reasonable reading of 19 CSR 25-30.051 is that it approves

the use of any one of the three solution strengths but does not require operators to use

them all in conducting any particular test. Consistent with this construction, the trial

court erred in refusing to admit the breath analyzer results, and the case should be

remanded.


                                                  _________________________________
                                                  Paul C. Wilson, Judge




                                             11
