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Robinson v. Director of Revenue6/1/1999
d an ethanol concentration in aqueous solution within the value identified in the regulation.
Driver responds the certificate of analysis "fails to identify the supplier of the simulator [solution]. Although the certificate [of analysis] is printed on letterhead of RepCo Marketing, nowhere in the body of the certificate [of analysis] does it state that the solution was supplied by RepCo Marketing."
We have resolved these issues in two recent cases, Meurer v. Director of Revenue, 984 S.W.2d 873 (Mo. App. E.D. 1999) and Selix v. Director of Revenue, 985 S.W.2d 380 (Mo. App. E.D. 1999). In light of those dispositive opinions, we conclude RepCo was the supplier of the simulator solution and the language RepCo used in its certificate of analysis to certify the simulator solution satisfies 19 CSR 25-30.051(1). A lengthy opinion reiterating the explanations for this holding is not necessary.
Driver also urges that, even if we find RepCo is the supplier of the solution, the trial court properly found the certificate of analysis fails to comply with the regulation's requirement that the supplier certify the solution as having the specified alcohol concentration. Driver points out the certificate of analysis states the solution was tested by an "independent laboratory," and therefore, RepCo was not certifying the solution as required by the regulation. We disagree.
Nineteen CSR 25-30.051(1) only requires that the supplier certify the simulator solution has "an ethanol, in aqueous solution, concentration of 0.1210 g/dl +/-3% (wt./vol.)." The plain language of the regulation does not require RepCo, the supplier, to test the simulator solution itself, as Driver contends.
Therefore, we find the trial court erred because the certificate of analysis did comply with Department of Health regulations and the evidence showed Driver did have a blood alcohol concentration of at least .10%.
Director's second point raises the issue of the officer's probable cause to stop Driver. Due to our Disposition of Director's first point and the parties' stipulation that the officer had probable cause to stop Driver, Director's second point is moot.
Judgment reversed and remanded for the trial court to enter judgment sustaining Director's order suspending Driver's driving privilege.
Separate Opinion:
None
Page 1 2 Missouri DUI Attorneys
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