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Blechle v. Director of Revenue11/23/1999
hese foundational requirements are found in the Code of State Regulations in 19 CSR 25-30. Meurer v. Director of Revenue, 984 S.W.2d 873, 876 (Mo. App. E.D. 1999).
The Department of Health promulgated the emergency version by an emergency amendment to rule 19 CSR 25-30.051, effective May 4, 1998. In the earlier version, 19 CSR 25-30.051(3) required a certificate of analysis to state the name of the supplier, the lot or batch number of the solution, the ethanol concentration in aqueous solution and vapor solution, and the expiration date. The emergency version required only that the solution be from approved suppliers. Approved suppliers included: Alcohol Countermeasure Systems, Inc., Guth Laboratories, Inc., and RepCo Marketing, Inc.
An identical issue was raised in Harper v. Director of Revenue, 1999 WL 363484 (Mo. App. E.D. June 8, 1999). In Harper, the driver was arrested in 1996, and the trial de novo was held on June 16, 1998. Id. at *1. We applied the emergency version of 19 CSR 25-30.051 that became effective May 4, 1998, rather than the version in effect at the time of arrest, and reversed the judgment of the trial court. Id. at *2. Our Court has made similar findings in Meurer, 984 S.W.2d at 876 and Selix v. Director of Revenue, 985 S.W.2d 380, 382 (Mo. App. E.D. 1999).
Procedural statutes and administrative rules apply retrospectively unless the enactment reveals a contrary intent. DeClue v. Director of Revenue, 945 S.W.2d 684, 686 (Mo. App. 1997). We held in DeClue that the procedural components of breath analysis tests include the testing techniques and methods, the qualification of the person giving the test, and the nature and description of the equipment and devices used. Id. "Because [19 CSR 25-30.051] merely relates to the admissibility of the test results into evidence, we conclude that it is procedural and subject to retrospective application." Id.
Based on Harper, supra we find the trial court erroneously applied the version of 19 CSR 25-30.051 in effect on the date of arrest, and erroneously concluded the certificate of analysis was defective and deficient. We find the certificate of analysis introduced at the trial de novo complies with the requirements of the emergency version of 19 CSR 25-30.051 in effect on that date. The terms of the emergency version do not even require a certificate of analysis. Instead, the maintenance report must show the solution was from an approved supplier. Here, the record reveals the supplier was RepCo Marketing, Inc., one of the approved suppliers mentioned in the emergency version.
Additionally, the trial court erred in stating the Department of Health does not have the authority to promulgate 19 CSR 25-30.051 as an emergency rule under Section 536.025. Section 536.021 sets forth the rules and procedures for making, amending or rescinding rules. However, Section 536.025 states that " rule may be made, amended or rescinded by a state agency without following the provisions of section 536.021" if the state agency complies with the procedures set forth in Section 536.025. No evidence exists that the Department of Health did not comply with the procedures set forth in Section 536.025.
Accordingly, we reverse the trial court's judgment and remand for the trial court to reinstate the suspension of Driver's driving privileges.
Separate Opinion: None
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