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Hansen v. Director of Revenue7/25/2000
Appeal From: Circuit Court of St. Louis County, Hon. Robert S. Cohen
Opinion Vote: AFFIRMED.
Gaertner, P.J., and Simon, J., concur.
Opinion:
Marilyn Groves Hansen (hereinafter "Hansen") appeals from an order and judgment in the St. Louis County Circuit Court sustaining the decision of the Director of Revenue (hereinafter "the Director") to suspend her driving privileges for driving while intoxicated. We affirm the judgment of the trial court.
FACTS & PROCEDURAL BACKGROUND
Administration of the breath analysis test
On December 15, 1998, Officer Mike Monticelli arrested Hansen for driving while intoxicated. While at the police station, Officer Monticelli administered a breath analysis test to Hansen in compliance with the Department of Health (hereinafter "Department") Regulations. Pursuant to Regulation 19 CSR 25-30, Officer Monticelli observed Hansen for at least fifteen minutes before administering the test. Officer Monticelli testified that Hansen did not smoke, vomit, or orally intake anything during this observation period. The results were deemed invalid because Hansen leaned on the testing machine and pulled the mouthpiece out of the tube.
Officer Monticelli administered a second test approximately six minutes after the first test. He testified that while preparing the breathalyzer for the second test he did not directly observe Hansen. Officer Monticelli and Hansen remained in the same room during this period, and no one else entered the room. According to the second test, Hansen's blood alcohol content (BAC) exceeded the legal limit. The results of the second test formed the basis for the suspension of Hansen's driving privileges.
Department Regulations governing breath analysis
Department Regulation 19 CSR 25-30.011(5) states that "breath analyzers shall be operated strictly in accordance with the procedures set forth in 19 CSR 25-30.060." To determine blood alcohol levels, 25-30.011(5)(A) requires an operator administering a breath analysis test to complete an operational checklist and certification section on forms that correspond to the type of testing machine employed. Regardless of the type of machine, under 19 CSR 25-30.060, the initial step in each checklist states that the subject must be observed for at least fifteen minutes prior to the test. The observation period is designed to ensure that the subject does not smoke, vomit, or orally intake any item which may taint the test results. The remaining checklist steps make certain the correct operating procedure has been followed. The last section requires the operator to certify that the test was administered without deviation from the specified procedure.
Hansen's claim
Hansen claims 19 CSR 25-30 mandates that a testing officer observe the subject receiving a breath test for at least 15 minutes immediately preceding the test. Hansen reasons that the results of the second breath test should be inadmissible because Officer Monticelli did not follow this mandate. The Director of Revenue (hereinafter "the Director") concedes Officer Monticelli did not observe Hansen for fifteen minutes immediately preceding the second test, but claims that the purpose of the rule was served by the first fifteen-minute observation period. The Director argues that requiring a second fifteen-minute observation period in the absence of any evidence that the subject smoked, vomited, or orally took in a substance that would taint the test results imposes a requirement unnecessary to ensure that the test was reliable.
STANDARD OF REVIEW
Our review of a trial court's judgment up
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