Eric Christopher Courtney v. Director of Revenue

In the
Missouri Court of Appeals
Western District
ERIC CHRISTOPHER COURTNEY, )
)
Appellant-Respondent, ) WD77646 Consolidated with
) WD77657
v. )
) OPINION FILED: October 27, 2015
DIRECTOR OF REVENUE, )
)
Respondent-Appellant. )

Appeal from the Circuit Court of Henry County, Missouri
The Honorable Wayne P. Strothmann, Judge

Before Division Four: Alok Ahuja, Chief Judge, Presiding, Gary D. Witt, Judge and
John M. Torrence, Special Judge

The Director of Revenue (the "Director") appeals a trial court judgment setting

aside the revocation of Eric Courtney's ("Courtney") driving privileges. The Director

argues that the trial court erred in excluding the results of Courtney's breath test for the

stated reason that there was no evidence that the simulator for the breath testing device

had been calibrated against a National Institute of Standards and Technology ("NIST")-

approved thermometer in connection with its maintenance as required by the Department

of Health and Senior Services ("DHSS"). Courtney cross appeals, arguing that the trial

court erred in finding that the breath test results were admissible despite the requirement
in the Code of State Regulations ("CSR") that the equipment be calibrated by the use of

three different standards. We affirm.

FACTS AND PROCEDURAL HISTORY1

Courtney was stopped by a state trooper and subsequently arrested for driving

under the influence of alcohol on July 16, 2013, in Henry County. 2 Following his arrest,

he was given a breath test to determine his blood alcohol content ("BAC"). The test

determined his BAC to be .149 percent. Courtney was notified that his license and

privilege to operate a motor vehicle were subject to administrative sanction pursuant to

Section 302.5203 since his BAC exceeded the permissible statutory limit of .08 percent.

Courtney timely challenged the administrative sanction through the appeal process set

forth in Section 302.530. A hearing examiner affirmed the decision to revoke Courtney's

driving privileges, effective November 20, 2013. Courtney requested a trial de novo as

provided by Section 302.535.

A bench trial was held on April 16, 2014, with the sole issue in dispute being the

admissibility of the result of Courtney's breath test. The Director presented three

witnesses: Brian Lutmer ("Lutmer"), Senior Public Health Scientist and Program

Manager of the Breath Alcohol Program for the DHSS, Trooper Robert West ("Trooper

West"), the officer who performed the maintenance and calibration checks on the

Datamaster breath testing machine used to test Courtney, and Trooper Marvin Richardson

1
We view the evidence in the light most favorable to the trial court's judgment. Ridge v. Dir. of Revenue,
428 S.W.3d 735, 736 (Mo. App. W.D. 2014) (citation omitted).
2
Prior to trial, Courtney stipulated that there was probable cause for his stop and his arrest, and the only
issue he was contesting was the admissibility of the breath test. Therefore, we do not detail further the evidence
regarding the stop or arrest.
3
All statutory references are to RSMo 2000 cumulative as currently supplemented unless otherwise noted.

2
("Trooper Richardson"), the arresting officer who administered the breath test to

Courtney.

DHSS is the agency in charge of establishing the regulations and protocols for the

breath testing program for the State of Missouri. Lutmer wrote the regulatory standards

that govern the administration of the breath test as well as those that govern the

maintenance of the breathalyzer machines. His intent in drafting the regulations was that

only one standard solution would be required in calibrating the breath testing machines

and that the list of three different standards contained in regulation 19 CSR 25-30.051

was meant to give "law enforcement additional options." He also stated that the

maintenance report checklist form, that he personally drafted, was intended to match the

requirements of the regulation.

Trooper West completed the maintenance check on the Datamaster that was used

in Courtney's arrest. Trooper West used only one simulator solution as the standard

against which he checked the calibration of the simulator for the machine. He completed

the maintenance report checklist form when he performed the maintenance on July 11,

2013. The completed form was submitted to the DHSS. The box labeled "Simulator

Temp" is filled in indicating that the temperature of the solution was 34.1 degrees

Celsius. The report form was completed and signed by Trooper West.

3
 Trooper Richardson was the arresting officer and administered the breath test to

Courtney. Courtney objected to the admission of the results of the breath test, arguing

that the Director failed to lay a proper foundation under 19 CSR 25-30.051,4 as follows:

COURTNEY'S COUNSEL: Judge, I would object at this juncture. The
Director of Revenue has not laid a proper foundation pursuant to 19 CSR
25-30 in multiple respects. They have not laid a sufficient foundation for
the admission of the breath test. They haven't met the requirements that are
set forth in the Code of State Regulations, specifically, 19 CSR 25-
30.051.[5]

THE COURT: Subject to that objection, the Court is going to allow the
witness to answer, and I'll rule on the objection in my judgment.

At this point, rather than ensuring he had met the foundational "requirements" that

are set forth in 19 CSR 25-30.051, counsel for the Director embarked upon an "additional

argument."

DIRECTOR'S COUNSEL:[6] Your Honor, could I make one additional
argument --

THE COURT: You may.

DIRECTOR'S COUNSEL: -- beyond what we've already established?

THE COURT: Yes, sir.

DIRECTOR'S COUNSEL: We would argue that the Code of State
Regulations, when they were changed, which [counsel] referred to, we
believe that those act retrospectively and, therefore, the maintenance report
does meet the regulations required by the regulation requirement. There is

4
Unless otherwise indicated all regulatory references are to the Missouri Code of State Regulations in effect
as of July 16, 2013.
5
The regulation consists of eight numbered paragraphs and subparagraphs detailing the following: (1)
general standards, (2) simulator solutions and the three allowed values, (3) approved suppliers of solutions, (4) use
of an NIST-certified thermometer, (5) compressed ethanol-gas mixture values required, (6) approved suppliers of
ethanol-gas mixtures, (7) optional use of such mixtures, and (8) the validity of maintenance reports based on
compliance with rules in effect at the time of the maintenance test. 19 CSR 25-30.051 (Nov. 30, 2012).
6
The record credits Courtney's counsel with this question. However, the argument following the question is
credited to the Director's counsel such that the context indicates that the Director posed the question.

4
 case law that establishes that these regulations which govern the
admissibility of the breath test are procedural and, therefore, apply
retrospectively unless there is clear intent for them to only apply
prospectively. So based on that, as well as our additional arguments and
evidence provided by Mr. Lutmer and Mr. West.

Courtney's counsel then addressed the argument that the Director had injected:

COURTNEY'S COUNSEL: In response to that -- and I don't know if he
was, I guess, just making a short argument to the Court, but in response
to that, I would suggest that it's not at all ambiguous, what's set forth in the
regulations. And furthermore, the regulations specifically say -- that
particular section specifically says that maintenance reports completed prior
to the effective date of this rule shall be considered valid under the rule if
the maintenance report was completed in compliance with the rules in
effect at the time the maintenance report was completed. Well, now they
want to have it both ways. They want to say that it's the one that's in effect
now, not the one that's in effect at the time. But the regulation specifically
says that it's the one at the time, that it shall be valid if it's the one at the
time. And that's the one that we -- That's the one that's relevant today.

DIRECTOR'S COUNSEL: And, Your Honor, in response to that, we would
disagree that that clause pointed out by [counsel] is a savings clause in
there to save maintenance reports to make sure that they are still admissible
if they apply to the previous regulations. It is not intended to kill off
maintenance reports, and that clause would only be necessary if the
regulations apply retrospectively. If they only applied prospectively, that
clause wouldn't be necessary.

The court made note of the arguments and objections, replying as follows:

THE COURT: Well, the Court has noted both arguments. And I
understand the Director's argument that the change should be applied
retrospectively, and so that if the maintenance report was done in
accordance with the new reg it ought to be good enough. I've made a note
of that argument. I'm going to allow the answer subject to those
objections, and I'll rule in my judgment.

DIRECTOR'S COUNSEL: Thank you, Your Honor.

BY DIRECTOR'S COUNSEL:

Q. And what was the result of that breath test?

5
 A. .149.

(Emphases added.)

At the conclusion of Trooper Richardson's testimony, the Director offered Exhibit

2 into evidence which was fifteen pages in length and described as "the DOR certified

record of the Alcohol Influence Report and all the supporting documents." The exhibit

included the arrest report, the trooper's narrative report, breath test results, and Trooper

Richardson's permit and license. Courtney again objected to the admission of the exhibit

based on lack of foundation in the following exchange:

BY COURTNEY'S COUNSEL: I would renew my objection to any
information contained in that exhibit that relates to the results of the
Datamaster test that was conducted in this case. And again, that objection
is because the Director has failed to lay an adequate foundation pursuant to
19 CSR 25-30.051.

COURT: Subject to that objection, Exhibit 2 will be admitted.

After the close of evidence, the following exchange occurred:

COURTNEY'S COUNSEL: That's fine. I would like to say one -- just one
other thing in closing if [counsel] is finished.

DIRECTOR'S COUNSEL: Absolutely.

COURTNEY'S COUNSEL: In addition to the argument that I made about
the periodic calibration, maintenance reports and the failure of the Director
to lay a foundation as it relates to that, I think the Director also failed to lay
an adequate foundation as it relates to -- it's the same section as I identified
in my objection, 19 CSR 25-30.051, but there wasn't any evidence offered
today that the breath alcohol simulator used in this case was certified
against a National Institute of Standards and Technology traceable
reference thermometer between January 1, 2013 and December 31, 2013,
which is required by the regulation.

6
 DIRECTOR'S COUNSEL: Your Honor, I actually have that certified
document.[7] I forgot to offer that into evidence. I don't know if the Court
would allow me the opportunity to do that now or not.

THE COURT: Well, I --

COURTNEY'S COUNSEL: I would be opposed to that, Judge. He didn't --

THE COURT: I think that's not fair to the Petitioner. The evidence has been
closed and --

DIRECTOR'S COUNSEL: Your Honor, when the -- when the maintenance
and the breath test results were offered, that objection was never made.

COURTNEY'S COUNSEL: I objected pursuant to that exact section. Well,
I mean, that paragraph is contained in the same section, 19 CSR 35-30.051.

DIRECTOR'S COUNSEL: However, that specific objection was not made
at the time.

COURTNEY'S COUNSEL: That's the only objection I did make, was that
they failed to lay a foundation pursuant to that section.

DIRECTOR'S COUNSEL: Well, Your Honor, that's -- I mean, all of our
argument was over another -- another part of that section. He made a
general objection.

COURTNEY'S COUNSEL: I'm not required to tell them in advance.

DIRECTOR'S COUNSEL: A specific --

THE COURT: I think --

DIRECTOR'S COUNSEL: -- objection is required.

7
The Director argues before this court that the document in question was a properly authenticated record
establishing that a NIST traceable thermometer was properly used to calibrate the breath testing machine used in this
matter. The document referred to by the Director at trial was not marked as an exhibit, is not contained in the legal
file or the record before this court, and no offer of proof was made as to the contents of the document counsel
referred to at the trial, nor, key to this case, was the document presented to the trial court in post-trial briefing. A
party is obligated to include all documents necessary for us to rule on the issues presented. Rule 81.12(a).

7
 THE COURT: Yeah, I believe that's true. I don't think there was any
indication that there was an objection to the certification of the simulator,
so that objection is going to be overruled.

DIRECTOR'S COUNSEL: Thank you, Your Honor.

During the course of the proceedings, the court granted the parties one week to file

further written objections to the evidence and granted the opposing party an additional

week to file any written response to those objections. The Director requested that, if the

trial court were to ultimately sustain any of Courtney's objections as to any of the

evidence, then the evidence and testimony on that subject should be considered an offer

of proof as to those issues. The trial court granted this request.8

Ultimately, then, Courtney argued that the Director had failed to lay a proper

foundation for the breath test results in two main respects, both requirements being set

forth in 19 CSR 25-30.051. First, he argued that under the version of the regulation in

effect at the time of his arrest, the breath testing machine had to be tested against three

separate known simulator solutions, and the machine in question was only tested against

one known simulator solution. Second, he argued that "there was no evidence the

standard used to calibrate the breath testing device had been certified against a National

Institute of Standards and Technology (NIST) traceable reference thermometer or

thermocouple, as required in 19 CSR 25-30.051(4)."

In its judgment, entered after the additional objections and legal arguments were

submitted by both parties as to both topics, the court specifically found that the first

8
In essence, the trial court took the entire matter under advisement, including the objections made as to the
foundation of the breath test evidence and any additional objections and/or legal arguments and responses thereto to
be made in writing to the court following trial during a set period of time. Neither party objected to this procedure
and, in a bench trial, we find this procedure to be proper.

8
objection was not well taken; however, the second objection was well taken and the court

found that, based on the second objection, the results of the breath test were inadmissible.

The court addressed its reconsideration of the foundational challenge as follows:

However, the Court has reconsidered the Petitioner's objection that
the breath test results should not be admitted because there was no evidence
the standard used to calibrate the breath testing device had been certified
against a National Institute of Standards and Technology (NIST) traceable
reference thermometer or thermocouple, as required in 19 CSR 25-
30.051(4). The Court overruled that objection at the trial on the basis that it
had not been clearly stated that Petitioner was objecting to the admission of
the results on that basis. The Court has reviewed the record and the
Court's notes, and finds that the Petitioner clearly stated that he was
objecting that the Director had not laid a proper foundation for the
admission of those test results under 19 CSR 25-30.051 "in multiple
respects". That objection was not limited to a particular section of that
regulation, and the Court finds that the objection specifically stated the
grounds upon which it was based. The Court agrees with the Petitioner
that there is no requirement that the Petitioner actually tell the Director
what evidence it needs to introduce in order to make its case. The Court
therefore sustains the Petitioner's objection to the admission of the breath
testing results on those grounds.

(Emphasis added.)

The court then set aside the revocation of Courtney's driving privilege.

The Director timely appeals and Courtney cross appeals.

ANALYSIS

The Director asserts two points on appeal. First, it argues that the trial court erred

as a matter of law in refusing to admit into evidence the result of Courtney’s breath test

and in reinstating his driving privilege because a breath test result cannot be excluded

from evidence absent a timely objection on a specific foundational ground. Second, it

argues that the court erred in excluding the test results because compliance with the

9
applicable DHSS regulations was evidenced by the admission of the completed approved

maintenance report form, which contained information sufficient to demonstrate

compliance with 19 CSR 25-30.051(4). In his cross appeal, Courtney argues that the trial

court erred when it overruled his objection to the admission of the breath test results

because three different vapor solutions were not used in the maintenance check of the

testing device which is required by 19 CSR 25-30.051. The Director's first point is

dispositive of the entire cause and therefore we do not reach the cross appeal.

Standard of Review

A trial court's judgment in a driver's revocation case is reviewed as any
court-tried civil case. We will affirm a judge-tried case unless it is not
supported by substantial evidence, it is against the weight of the evidence,
or it erroneously declares or applies the law. In a court-tried case the judge
is permitted wide latitude in the reception of evidence and is presumed to
have considered only proper evidence in reaching a judgment. This court is
primarily concerned with the correctness of the trial court's result, not the
route taken by the trial court to reach that result. Even where the trial
court's reasoning is wrong or insufficient, if the correct result was reached,
we must affirm.

Carter v. Dir. of Revenue, 454 S.W.3d 444, 446-47 (Mo. App. W.D. 2015) (citations and

internal quotation marks omitted).

We review the trial court's rulings as to the admissibility of evidence for an abuse

of discretion. Lozano v. BNSF Ry. Co., 421 S.W.3d 448, 451 (Mo. banc 2014) (citations

omitted). "[The trial court] abuses this discretion when its ruling is clearly against the

logic of the circumstances then before the court and is so unreasonable and arbitrary that

it shocks the sense of justice and indicates a lack of careful, deliberate consideration." Id.

(citation omitted).

10
 Discussion

The Director argues that the court erred in excluding the breath test results, an

exclusion which the trial court based on the lack of evidence that the calibration of the

simulator for the Datamaster was certified against an NIST traceable reference

thermometer or thermocouple.

"The Director has the burden of proof to establish by a preponderance of evidence

that probable cause existed to arrest [a] driver for driving while intoxicated and that an

evidentiary breath test determined the driver's BAC was beyond the legal limit." Carter,

454 S.W.3d at 447-48 (citation omitted). To introduce evidence of the defendant's BAC,

the Director must lay a separate foundation showing the police conformed to the

requirements in the Code of State Regulations. To establish a prima facie foundation for

admission of breathalyzer test results, the Director must demonstrate the test was

performed: (1) by following the approved techniques and methods of DHSS; (2) by an

operator holding a valid permit; (3) on equipment and devices approved by DHSS.

O'Rourke v. Dir. of Revenue, 409 S.W.3d 443, 447 (Mo. App. E.D. 2013) (citation

omitted). The regulations that must be followed to satisfy the prima facie foundational

requirements are set forth in 19 CSR 25-30. Id.

The regulation at issue is 19 CSR 25-30.051, Breath Analyzer Calibration

and Accuracy Standards, which states in relevant part:

(4) Any breath alcohol simulator used in the verification or calibration of
evidential breath analyzers with the standard simulator solutions referred to
in sections (2) and (3) of this rule shall be certified against a National
Institute of Standards and Technology (NIST) traceable reference

11
 thermometer or thermocouple between January 1, 2013, and December 31,
2013, and annually thereafter.[9]

The Director does not dispute that it bears the burden of proof to establish by a

preponderance of the evidence that the law enforcement agency complied with the

separate foundational requirements set forth in the CSR. Carter, 454 S.W.3d at 447-48.

Nor does the Director dispute that foundational evidence regarding the use of a NIST

thermometer or thermocouple was required under 19 CSR 25-30.051(4) for admission of

the results of the BAC. Rather, the Director contends that the exclusion was erroneous

because Courtney never made a specific foundational objection to the lack of

foundational evidence regarding the use of a NIST thermometer or thermocouple.

Foundational requirements for the admission of breath tests are only an issue in

the event that a timely objection is made. Bozarth v. Dir. of Revenue, 168 S.W.3d 78, 82

(Mo. App. E.D. 2005) (trial court properly excluded results of breath test where driver

had asserted in motion in limine that Director had failed to meet foundational

prerequisites). Put another way, proof of compliance with the regulation only becomes

an issue when a proper, timely objection is made of the admission of the BAC. Id. "It is

particularly important that where an inadequate foundation has been laid for admission of

evidence that the objection made be specific as such foundation deficiencies can

frequently be remedied." State v. Tisius, 362 S.W.3d 398, 407 (Mo. banc 2012) (citation

omitted).

9
See, supra, note 5 for a summary of 19 CSR 25-30.051 and the Appendix for its entire text.

12
 In other words, "there must be an objection to the admission of the test result

'sufficiently clear and definite to enable the trial court to understand the reason for the

objection.'" Endsley v. Dir. of Revenue, 6 S.W.3d 153, 159 (Mo. App. W.D. 1999)

(emphasis added; citation omitted; overruled on other grounds). "An objection is

sufficient for this purpose if its underlying reason is readily apparent to the court." Id.

(emphasis added). "In applying the 'specificity' rule, Missouri appellate courts have ruled

that general objections such as 'lacks a foundation,' 'irrelevant,' 'calls for speculation,' 'is

self serving,' and the like, are not sufficiently specific objections." Catroppa v. Metal

Bldg. Supply, Inc., 267 S.W.3d 812, 816 (Mo. App. S.D. 2008) (citation omitted).

"Whether a proper foundation has been established is primarily a question addressed to

the sound discretion of the trial court." Bray v. Bi-State Dev. Corp., 949 S.W.2d 93, 97

(Mo. App. E.D. 1997) (citation omitted). The purpose of the rule is to ensure the

objection is sufficient for the trial court to be able to properly understand and rule upon it.

In determining whether Courtney's objection was "sufficiently clear and definite"

such that the trial court did not abuse its discretion in its evidentiary ruling, we note that

Courtney objected each time the breath test evidence was offered, arguing that the

Director failed to lay a proper foundation for the results to be admitted into evidence and

specifically cited 19 CSR 25-30.051 as the ground for his objection. The transcript

indicates that the Director was singularly focused on another matter after the initial

objection and "forgot" to introduce all required foundational evidence. Then, after the

close of the evidence, Courtney argued in open court that the Director's evidence failed to

establish that the simulator for the testing device had been shown to be certified against

13
an NIST traceable thermometer or thermocouple. In addition, the trial court, without

objection to this process by either party, allowed the parties to raise any additional

objections they may have to any of the evidence in writing following the trial, along with

any legal arguments they wished to present. Courtney filed a timely brief with the trial

court detailing all of his foundational objections to the evidence including extensive

discussion of the lack of proof of the use of a NIST traceable thermometer or

thermocouple. The Director's brief responded to these arguments.10

The Director tries hundreds, if not thousands, of administrative alcohol-related

driver's license cases every year. The CSR in question sets out with specificity

foundational requirements for the admission of the breath test results. 19 CSR 25-30.051.

It is not as though the Director is unaware of these foundational requirements or that

these requirements are difficult to establish. The parties are free to stipulate as to some or

all of the foundational requirements, just as the parties stipulated as to the probable cause

for the stop in this case. Certainly, the Director cannot argue that he was surprised by the

requirements of the CSR, when, in fact the Director had the author of the CSR in the

courtroom during the trial.

10
The Dissent contends that the transcript indicates that the trial court restricted post-trial briefing to
another matter and argues that additional post-trial objections cannot sustain the judgment. But the objection as to
foundation was sufficient, as we explain. Additionally, the Director did not object in the trial court that Courtney's
briefing was outside the scope of what was permitted. Further, expanded briefing on a foundational matter was
allowed post-trial in at least one of the cases cited by the Dissent. Lester E. Cox Med. Ctrs. v. Richards, 252 S.W.3d
236, 240-41 (Mo. App. S.D. 2008). More importantly, even if we were to construe the transcript as limiting any
written objections to another matter, nothing would have prevented Courtney from raising this preserved
foundational issue in a post-judgment motion, and there is no reason to believe that, presented with the exact same
briefing on the exact same foundational issue, the trial court would not have reached the exact same conclusion. It is
well-settled that we are "primarily concerned with the correctness of the trial court's result, not the route taken by
the trial court to reach that result." Carter, 454 S.W.3d at 447 (citation omitted; emphases added).

14
 Here, the Director failed to establish that the simulator for the breath testing device

was certified against a NIST traceable reference thermometer or thermocouple. Absent

proof of this element of the foundation for the breath test results, we cannot find that the

trial court abused its discretion in sustaining Courtney's objection and refusing to

consider the breath test result. Carter, 454 S.W.3d at 448. Had the trial court admitted

the breath test result into evidence, absent evidence that the simulator for the breath

testing device was properly certified under the regulations, the trial court would have

been free to find the breath test result obtained by the use of that device to be unreliable.

We appreciate the Dissent's acknowledgement that much case law surrounding a

challenge to the specificity of an objection concerning a foundational challenge is

grounded in cases treating the issue of an appellant's preservation of a claim of error that

results in the affirmance of the trial court's admission of evidence. That is because our

standard of review commands us to reverse an admissibility ruling only where the trial

court abuses its discretion such that its ruling is clearly against the logic of the

circumstances then before the court and is so unreasonable and arbitrary that it shocks the

sense of justice and indicates a lack of careful, deliberate consideration. Lozano, 421

S.W.3d at 451.

To that end, we note that even the Dissent's main case in the procedural posture of

affirming the admission of evidence is inapposite under the facts of this case. In Lester

E. Cox Medical Centers v. Richards, 252 S.W.3d 236 (Mo. App. S.D. 2008), the

appellants objected to two exhibits. The trial court took their objections under

advisement and asked both parties to submit post-trial briefs on the admissibility of the

15
exhibits. Id. at 239. The medical center subsequently filed a brief, but the appellants did

not. Id. The trial court entered judgment without ever making a specific ruling on the

objections to the admission of the two exhibits. Id. On appeal, as to the first exhibit, the

Southern District noted that the argument on appeal had never been raised below. As to

the second exhibit, the Southern District noted that the attorney offering the exhibit

specifically stated the identity of the statute under which he was offering the exhibit that

would otherwise be considered hearsay and handed a copy of the statute to the judge. Id.

at 240. In response, the appellants at trial merely stated the objection "[i]t's hearsay[,] I

don't think it complies with the statute." The objection was considered too general for a

reversal and likened to a general objection for "lack of foundation." That was

"particularly true" because "the trial court held open its ruling on the admission of the

exhibit and gave Appellants' counsel the opportunity to submit his objections and

rationale in support of them via post-trial submission and he simply chose not to do

so." Id. at 240-41 (emphases added). Had the Cox appellants properly filed a brief

addressing the matter, the trial court very well may have reviewed its initial

determination and the record and ruled in the appellants' favor, as was true in the case at

bar. Such a ruling may very well have survived reversal under review for abuse of

discretion. Id. at 240. As the Court in Lester E. Cox Medical Centers points out, the

objection must be sufficient to allow the trial court to understand the legal basis for the

objection. In the case at bar the trial court did in fact understand the basis for the

objection and sustained it.

16
 The authority that the Dissent cites where the appellate court reversed a trial

court's exclusion of the Director's evidence on foundational grounds is not on point. In

Reinert v. Director of Revenue, for example, there was no objection at all to the officer's

testimony about the results of the breath analysis machine. 894 S.W.2d 162, 163-64 (Mo.

banc 1995). The Supreme Court therefore held consistent with precedent that the party

against whom the evidence was offered had waived the objection to that evidence. Id.

Collins v. Director of Revenue presents a similar story: evidence of BAC was

admitted in two different ways at trial. As for the first, the results of the BAC test, we

determined that the driver's vague objection was not relevant to our analysis of

admissibility, in part because, as here, the trial court deferred ruling on the admissibility

of the exhibit until after the bench trial and in part because it was evident which

requirement the driver was challenging. 399 S.W.3d 95, 99 (Mo. App. W.D. 2013). As

for the second, as in Reinert, the Collins driver had utterly failed to object to officer's

testimony stating the results of the BAC. Id. at 100. The objection was waived and the

evidence admitted through that testimony could not be excluded. Id.

Krieger v. Director of Revenue is additionally inapposite. 14 S.W.3d 697 (Mo.

App. E.D. 2000). There, the trial court initially admitted the results of a breath test into

evidence but reversed its decision at the close of trial, determining that "the results would

not be admissible or considered by the court due to the Director's failure to prove

compliance with the fifteen-minute observation period." Id. at 702. In that case, the

officer was permitted to testify about a driver's BAC, and the only objection was that the

log was a copy and not the best evidence: on appeal, the Eastern District of our Court

17
noted that the officer's "testimony as to the result of the test was before the court without

any objection as to lack of foundation." Id. at 702. Thus, again, as in Reinert and

Collins, as to the officer's testimony, there was no objection as to lack of foundation.

After the results were admitted, the driver made a vague foundational challenge to

additional evidence of the results, to-wit: "the report was not done in accordance with

regulations that were applicable at the time the arrest was made." Id. The Eastern District

determined that the objection was neither timely nor clear and definite. Moreover, unlike

in the case at bar, there is nothing in the Krieger opinion indicating that that the driver

ever objected to admission of evidence of the results of the BAC on the ground that the

trial court created. In fact, the opinion indicates that the trial court took this issue upon

itself:

The [trial] court, without any additional objection from Driver or even a
motion to strike Director's testimony, changed its earlier ruling and denied
admission of the breath test result into evidence. The court reasoned that
due to "inconsistencies" in the testimony of Director's witnesses regarding
the relevant times, the fact that [the officer] was not wearing a watch, and
that fact that there was no document evidence which reflected an entry as to
when the observation period began, Director failed to establish that Driver
had been observed for fifteen minutes prior to the administration of the
breath analysis test as required by the Department of Health regulations.

Id. at 700 (emphases added).

The viability of Krieger is questionable in light of White v. Director of Revenue,

which emphasized the Director's burden of production and persuasion. 321 S.W.3d 298,

304-05 (Mo. banc 2010). In other words, the trial court's decision in Krieger may very

well have gone to the heart of the burden of proof rather than being a matter of

foundational defect. Even setting that aside, however, the case at bar is in a different

18
posture: Courtney timely objected to the admission of the BAC results on foundational

grounds "in multiple respects" for not having "met the requirements" under 19 CSR 25-

30.051. And he renewed that objection, again citing 19 CSR 25-30.051. Even put on

notice of the objection based on the foundational "requirements" of 19 CSR 25-30.051,

the Director took no action to remedy the problem. In fact, the Director, who was

required to establish this evidence, admitted the error: "I forgot to offer that into

evidence."11 The Director's forgetfulness does not transform a specific objection into a

general one.

There are a multitude of foundational challenges that Courtney's counsel could

have lodged during this trial. The trial court was not faced with the general objection of

"lack of foundation" as in Reed v. Director of Revenue, 834 S.W.2d 834, 836 (Mo. App.

E.D. 1992), or "a proper foundation has not been laid" as in Stewart v. Director of

Revenue, 702 S.W.2d 472, 476 (Mo. banc 1986), or even that "the report was not done in

accordance with regulations that were applicable at the time the arrest was made"

Krieger, 14 S.W.3d at 702.12 The trial court understood the objection and ruled upon it.

11
Even if the document the Director referred to did in fact show the use of a NIST traceable thermometer,
we have no information in the record before this court that the use of this thermometer was properly done on the
dates required by the regulation. Carter, 454 S.W.3d at 447-48.
12
The Dissent additionally relies on Discover Bank v. Smith, 326 S.W.3d 120 (Mo. App. S.D. 2010), where
a creditor succeeded in an action against a cardholder. At trial, the cardholder objected to the creditor's foundation,
using a specific portion of language from the business records exception (without citing Section 490.680). On
appeal, the cardholder tried to argue that the creditor had not laid a foundation, citing additional portions of the
business records exception that it had never raised to the trial court. The Southern District of our Court determined
that only the specific reason raised to the trial court was preserved, and reversed on that ground. Id. at 125-26.
While we could understand the Dissent's likening of the business records rule in general to 19 CSR 25-30 in general,
we are not swayed that the creditor's use of some of the language from a statute is equivalent to Courtney's citation
of the specific regulation in question, 19 CSR 25-30.051. In other words, Discover Bank is not instructive because
there the cardholder's objection was not 'sufficiently clear and definite to enable the trial court to understand the
reason for the objection,'" so as to put the trial court on notice of reasons to exclude the evidence, reasons the
creditor later wished examined on appeal.

19
 We will not hold that the trial court abused its sound discretion as to whether the

Director laid a proper foundation where Courtney objected on the ground that a

foundation had not been laid under a specific regulation, where the author of that specific

regulation was in the courtroom, where the Director's attorney "forgot" to offer evidence

that might have cured the foundational deficiency, and where the trial court left open his

ruling of the motion for post-trial briefing as to matters of admissibility of evidence. It is

not "sandbagging," as the Dissent contends, to require the Director to ensure it has met

the foundational requirements of the specific regulation drawn into question by opposing

counsel. Under these facts, any other holding would relieve the Director of its burden of

proof. White, 321 S.W.3d at 304-05.

In this court-tried case, a review of the record indicates that the court's ruling is

measured and considered, and it does not shock our conscience. The Director was

required to lay a foundation. Even when alerted to its failure to do so, the Director forgot

to comply with established foundational requirements. Director's Point I is denied.

Based on our ruling on Point I, we do not need to reach Point II raised by the Director or

the point raised in Courtney's cross appeal.

CONCLUSION

The trial court's judgment is affirmed.

__________________________________
Gary D. Witt, Judge
Ahuja, Chief Judge, Presiding, dissents in separate opinion
Torrence, Special Judge, joins in the majority opinion

20
 Appendix

19 CSR 25-30.051 – Breath Analyzer Calibration and Accuracy Verification Standards

PURPOSE: This rule defines the standard simulator solutions or compressed ethanol gas
mixtures to be used in verifying and calibrating breath analyzers, as well as the annual checks
required on simulators used in conjunction with the standard simulator solution.

(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%.

(3) Approved suppliers of standard simulator solutions are –

(A) Alcohol Countermeasure Systems, Inc.
Aurora, CO 80010

(B) Guth Laboratories, Inc.
Harrisburg, PA 17111-4511

(C) RepCo Marketing, Inc.
Raleigh, NC 27604

(D) Draeger Safety, Inc.
Durango, CO 81303-7911

(4) Any breath alcohol simulator used in the verification or calibration of evidential
breath analyzers with the standard simulator solutions referred to in sections (2) and (3) of this
rule shall be certified against a National Institute of Standards and Technology (NIST) traceable
reference thermometer or thermocouple between January 1, 2013, and December 31, 2013, and
annually thereafter.

(5) Compressed ethanol-gas standard mixtures used to verify and calibrate evidential
breath analyzers shall be mixtures provided from approved 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%.

(6) Approved suppliers of standard compressed ethanol-gas mixtures are –

(A) Intoximeters, Inc.
St. Louis, MO 63114

(B) CMI, Inc.
Owensboro, KY 42303

(C) Draeger Safety Diagnostic, Inc.
Durango, CO 81303-7911

(D) ILMO Products Company, Inc.
Jacksonville, IL 62651-0790

(7) Compressed ethanol-gas mixtures shall only be used to verify and calibrate
evidential breath analyzers listing compressed ethanol gas mixtures as an option during the
maintenance check (see 19 CSR 25-30.031).

(8) 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.

2
 IN THE MISSOURI COURT OF APPEALS
WESTERN DISTRICT
ERIC CHRISTOPHER COURTNEY, )
Appellant-Respondent, )
) WD77646
v. ) consolidated with WD77657
)
DIRECTOR OF REVENUE, ) FILED: October 27, 2015
Respondent-Appellant. )

DISSENTING OPINION

The majority affirms the circuit court’s decision setting aside the revocation of Eric

Courtney’s driving privileges. The Director of Revenue revoked Courtney’s driving privileges

after he was arrested on probable cause to believe he was driving while intoxicated, and after a

breath analysis established that he had a blood-alcohol concentration of .149%, almost twice the

legal limit. The majority upholds the trial court’s conclusion that the breath test results were

inadmissible, because the Director failed to establish a foundational element for admission of the

test results: that the monthly verification of the calibration of the breath analyzer was conducted

using a National Institute of Standards and Technology traceable reference thermometer or

thermocouple (the “NIST-thermometer requirement”).

I respectfully dissent. Courtney failed to object that the Director failed to prove

compliance with the NIST-thermometer requirement, at a time when the Director had an

opportunity to cure this omission. Because Courtney failed to make a specific, timely objection
on this basis, the trial court erred in relying on this purported foundational defect to exclude the

breath analysis from evidence.

Discussion

I.

The majority first concludes that Courtney made a sufficiently specific objection during

trial when he referred to 19 CSR 25-30.051 as the basis for his objection. I disagree.

Regulations promulgated by the Department of Health and Senior Services (“DHSS”)

require that the calibration of breath analyzers used to measure blood-alcohol concentration must

be verified at least once every 35 days. See 19 CSR 25-30.031(3). 19 CSR 25-30.051 (set forth

in full in an Appendix to the majority opinion) contains multiple requirements for the

standardized samples and equipment used during these monthly calibration verifications.

Among other things, 19 CSR 25-30.051 specifies: that the calibration verification must be

performed using standard simulator solutions or ethanol-gas mixtures; that the standard simulator

solutions or ethanol-gas mixtures must possess particular concentrations; that the standard

simulator solutions or ethanol-gas mixtures must be acquired from approved suppliers; that a

NIST-traceable reference thermometer or thermocouple must be used to certify the simulator

used in the calibration verification; and that certification of the simulator device must occur

during calendar year 2013, and annually thereafter.

Although 19 CSR 25-30.051 contains multiple different requirements, during the trial de

novo Courtney objected to the admission of the breath test results with only the following vague

objections: that “[t]he Director of Revenue has not laid a proper foundation pursuant to 19 CSR

25-30 in multiple respects,” and that “[t]hey haven't met the requirements that are set forth in the

Code of State Regulations, specifically, 19 CSR 25-30.051.” Later, Courtney repeated his vague

2
objection, stating that “the Director has failed to lay an adequate foundation pursuant to 19 CSR

25-30.051.”

In context, Courtney’s vague objections referred to a separate foundation issue, not the

NIST-thermometer requirement. The meaning of Courtney’s general objections would have

been obvious to the Court based on Courtney’s cross-examination of two earlier witnesses, Brian

Lutmer, program manager of DHSS’s breath alcohol program, and Corporal Robert West, who

actually performed the most recent calibration verification of the breath analyzer used to test

Courtney. In his cross-examination of these witnesses, Courtney’s counsel focused on a single

issue concerning compliance with 19 CSR 25-30.051: that the calibration verification had been

performed using only one standard simulator solution, having a vapor concentration of 0.100%,

rather than with simulator solutions having all three vapor concentrations listed in 19 CSR 25-

30.051(2). In addition, following Courtney’s objections the parties made legal arguments to the

court concerning the retrospective application of later-enacted rule changes to 19 CSR 25-

30.051. The later rule revisions addressed the number of standard simulator solutions required

during the monthly calibration verifications; the rule changes had no effect on the NIST-

thermometer requirement.

Indeed, after the close of evidence, Courtney’s counsel acknowledged that his objection

based on the NIST-thermometer requirement was a new, additional argument. In his first

reference to this issue, after the close of the evidence, counsel stated:

In addition to the argument that I made about the periodic calibration,
maintenance reports and the failure of the Director to lay a foundation as it relates
to that, I think the Director also failed to lay an adequate foundation as it relates
to – it’s the same section as I identified in my objection, 19 CSR 25-30.051, but
there wasn’t any evidence offered today that the breath alcohol simulator used in
this case was certified against a National Institute of Standards and Technology
traceable reference thermometer between January 1, 2013 and December 31,
2013, which is required by the regulation.

3
(Emphasis added.)

In response to this belated objection, the Director’s counsel stated that “I actually have

that certified document. I forgot to offer that into evidence.” Although the Director’s counsel

offered the document establishing compliance with the NIST-thermometer requirement into

evidence, Courtney’s counsel objected because the evidence was now closed. The Director’s

counsel also argued that Courtney had failed to make a “specific objection” concerning use of an

appropriate thermometer or thermocouple when the breath test results were offered. The circuit

court agreed, concluding that “I don't think there was any indication that there was an objection

to the certification of the simulator, so that objection is going to be overruled.”

In its judgment, issued approximately six weeks after trial following post-trial briefing,

the trial court “reconsidered” its earlier conclusion that Courtney’s objection at trial was

insufficient to invoke the NIST-thermometer requirement. The court explained:

[T]he Petitioner clearly stated that he was objecting that the Director had not laid
a proper foundation for the admission of those test results under 19 CSR 25-
30.051 “in multiple respects.”[1] That objection was not limited to a particular
section of that regulation, and the Court finds that the objection sufficiently stated
the grounds upon which it was based. The Court agrees with the Petitioner that
there is no requirement that the Petitioner actually tell the Director what evidence
it needs to introduce in order to make its case. The Court therefore sustains the
Petitioner’s objection to the admission of the breath testing results on those
grounds.

Courtney’s general objections to the admission of the breath test results on the basis that

the Director “failed to lay an adequate foundation pursuant to 19 CSR 25-30.051,” was

insufficient to assert an objection based on the specific requirement that monthly calibration

verification be conducted using a particular thermometer or thermocouple. “Where . . .

1
The judgment is inaccurate when it states that Courtney objected that the breath test
results violated 19 CSR 25-30.051 “in multiple respects.” Instead, Courtney’s counsel objected that the
test results violated “19 CSR 25-30” in multiple respects. 19 CSR 25-30 is an entire Chapter of the Code
of State Regulations, which occupies 28 pages of the Code, and contains nine individual regulations,
many of which contain multiple sub-parts.

4
testimony is challenged on the basis of sufficient foundation, the challenge is essentially one of

admissibility, and such challenges must be raised by a timely objection.” Discover Bank v.

Smith, 326 S.W.3d 120, 125 (Mo. App. S.D. 2010) (citation and internal quotation marks

omitted). “It is particularly important that where an inadequate foundation has been laid for

admission of evidence that the objection made be specific as such foundation deficiencies can

frequently be remedied.” Id. (citation and internal quotation marks omitted). While the circuit

court may be correct that “there is no requirement that the Petitioner actually tell the Director

what evidence it needs to introduce in order to make its case,” Courtney was required to state his

objection with sufficient specificity so that the Director’s counsel would know what foundational

defect he had to cure.

Courtney’s objections cited a regulation containing multiple separate requirements for the

solutions, gas mixtures, and equipment used to calibrate and verify the calibration of breath

analyzers. Courtney did not specify which requirements he claimed the Director had failed to

satisfy, and his examination of previous witnesses, and his post-objection arguments, established

that his concern was with the number of simulator solutions used in the calibration verification,

not with the type of thermometer or thermocouple. In these circumstances, his objection was

insufficient. Lester E. Cox Medical Centers v. Richards, 252 S.W.3d 236 (Mo. App. S.D. 2008),

held a similar objection to be inadequate. In Richards, the appellant objected to the admission of

certain business records on the basis that the records did not comply with “the statute.” The

Court explained:

When Cox sought to introduce Exhibit 3 at trial, counsel for Appellants objected, stating
that “[i]t's hearsay. I don't think it complies with the statute.” An objection to evidence
“must be ‘sufficiently clear and definite’ so that [ ] counsel has the opportunity to correct
any error and the trial court can correctly rule on the objection.” When opposing counsel
has specifically stated the identity of the statute under which he is offering an exhibit that
would otherwise be considered hearsay and simultaneously hands a copy of it to the

5
 judge, we hold that an objection of “[i]t's hearsay[,] I don't think it complies with the
statute” is much like an objection of “lack of foundation;” it is too general to warrant
the trial court's sustaining it and preserves nothing for review. The objection was not
sufficiently definite so as to draw the trial court's attention to the portion of the cited
statute that was alleged to have not been satisfied.

Id. at 240-41 (emphasis added; citations and footnote omitted).2

Significantly, the Eastern District found that an objection to the admission of breath test

results, on the basis that “the report was not done in accordance with regulations that were

applicable at the time the arrest was made,” was insufficient to preserve a claim of non-

compliance with the fifteen-minute observation period. Krieger v. Dir. of Revenue, 14 S.W.3d

697, 702 (Mo. App. E.D. 2000). The Court explained that “[t]he objection was broad and

theoretically encompassed any number of unspecified foundational grounds. Such an objection

is not sufficient to deny the admissibility of the evidence.” Id.; see also Discover Bank v. Smith,

326 S.W.3d at 124-26 (an objection that a records custodian “has not testified sufficient to satisfy

the business records exception to hearsay,” was not enough to preserve objections for failure to

satisfy specific business records requirements); Catroppa v. Metal Bldg. Supply, Inc., 267

S.W.3d 812, 817 (Mo. App. S.D. 2008) (a foundation objection was insufficiently specific where

the appellant “failed to include any specific deficient foundational element in its objection”).

In the absence of a specific objection, proof of the foundational requirements for

admission of breath test results is unnecessary, and a circuit court lacks the authority to exclude

the breath test results from evidence. The Missouri Supreme Court made this clear in Reinert v.

2
The majority suggests that Richards is distinguishable, because the Court suggested that
post-trial briefing might have been an appropriate avenue to raise a foundational objection in that case.
Unlike in Richards, however, in this case the trial court did not give the parties free rein to assert
additional evidentiary objections in their post-trial briefing, as explained more fully in § II, below.

6
Dir. of Revenue, 894 S.W.2d 162 (Mo. banc 1995),3 where the Director failed to present

evidence concerning the maintenance of a breath analyzer. The Court explained:

Although one of the foundational prerequisites for the admission of the results of
a breath alcohol test is proof that the machine has been properly maintained, the
foundational prerequisites are unnecessary where the test result is admitted in
evidence without objection. When evidence of one of the issues in the case is
admitted without objection, the party against whom it is offered waives any
objection to the evidence, and it may be properly considered even if the evidence
would have been excluded upon a proper objection.

Id. at 164 (emphasis added; citation omitted); see also, e.g., Sellenriek v. Dir. of Revenue, 826

S.W.2d 338, 339 (Mo. banc 1992).4

The circuit court lacked authority to exclude the breath test results based on a

foundational defect to which Courtney had not timely objected. Although the specificity-of-

objection issue is most frequently discussed in connection with an appellant’s preservation of a

claim of error for appeal (resulting in affirmance of the trial court’s admission of evidence),

multiple cases have reversed a trial court’s exclusion of the Director’s evidence on foundational

grounds where no timely and sufficient foundational objection was made. This was the case in

Reinert, 894 S.W.2d at 164. We have likewise reversed decisions excluding the Director’s

evidence where no specific and timely objection was made to that evidence. See Collins v. Dir.

of Revenue, 399 S.W.3d 95, 100, 102 (Mo. App. W.D. 2013) (where driver failed to object to law

enforcement officer’s testimony concerning driver’s blood-alcohol concentration, “this evidence

could not later be excluded” by the trial court); Krieger, 14 S.W.3d at 702 (reversing trial court’s

3
Overruled on other grounds by White v. Dir. of Revenue, 321 S.W.3d 298, 305-06 (Mo.
banc 2010).
4
It may be, as the majority observes, that “[t]he Director tries hundreds, if not thousands,
of administrative alcohol-related driver’s license cases every year,” and that the Director’s counsel is
well-aware of the foundational requirements for admission of breath test results. Be that as it may,
decisions of the Missouri Supreme Court – which we are bound to follow – hold that it is unnecessary for
the Director to put on evidence laying a foundation for the admission of breath test results unless a
specific and timely objection is made by a driver.

7
exclusion of breath test results based on lack of evidence of compliance with fifteen-minute

observation period where driver only objected that “the report was not done in accordance with

regulations”).5

Courtney’s failure to make a specific, timely objection is particularly significant in this

case, because the Director was prepared to present evidence to establish that an appropriate

thermometer or thermocouple had been employed, but inadvertently failed to do so at trial.

Plainly, if Courtney had made a specific objection during trial, the Director would have promptly

and easily cured the defect. Foundational objections are subject to heightened specificity

requirements precisely because “foundation deficiencies can frequently be remedied.” Discover

Bank v. Smith, 326 S.W.3d at 125 (citation and internal quotation marks omitted). Objections

which “come[ ] too late to give opposing counsel an opportunity to . . . lay an appropriate

foundation” are insufficient; “[t]o hold otherwise would encourage ‘sandbagging.’” Washington

by Washington v. Barnes Hosp., 897 S.W.2d 611, 616 (Mo. banc 1995). The majority opinion

rewards just such sandbagging by Courtney’s counsel.6

II.

The majority opinion also concludes that the circuit court appropriately relied on the

NIST-thermometer requirement because “the trial court, without objection to this process by

either party, allowed the parties to raise any additional objections they may have to any of the

5
Courtney would not have been free to raise this unpreserved foundational issue for the
first time in a post-judgment motion, as the majority suggests. See, e.g., Peters v. General Motors Corp.,
200 S.W.3d 1, 15 (Mo. App. W.D. 2006).
6
The majority faults the Director’s counsel for failing to make an offer of proof
concerning the documents it had intended, but failed, to offer during trial concerning the NIST-
thermometer requirement. At the time counsel referred to the documents, the trial court overruled
Courtney’s objection based on the NIST-thermometer requirement because Courtney had not asserted this
specific objection during trial. Why would the Director’s counsel consider it necessary to make an offer
of proof of documents which were responsive to an objection, when that objection had been overruled on
other grounds?

8
evidence in writing following the trial.” This observation cannot sustain the judgment. First, the

trial court did not rely on Courtney’s post-trial briefing as the source of its authority to consider

the NIST-thermometer requirement. Instead, as explained above in § I, the trial court

(erroneously) held that the objection Courtney had stated at trial was sufficient to raise the issue.

In addition, the majority opinion misstates the record. The court only allowed post-trial

objections to the Director’s Exhibits 5 and 6, which were certified copies of the MISSOURI

REGISTER notices containing the relevant text of 19 CSR 25-30.031 and -30.051. When the

Director sought to introduce these exhibits into evidence, Courtney’s counsel objected (quite

properly) that “there’s information contained in Exhibits 5 and 6 that I think is a little different

than what was in – in the regulation.” It is only with respect to Exhibits 5 and 6 that Courtney

requested, and was granted, “the opportunity to be able to review these and supply the Court with

a written objection.” Courtney was not given license “to raise any additional objections [he] may

have to any of the evidence in writing following the trial.”

III.

For the reasons explained above, the trial court’s judgment setting aside the revocation of

Courtney’s driving privileges cannot be sustained based on the lack of evidence proving

compliance with the NIST-thermometer requirement. Because Courtney did not make a timely

objection based on that requirement, the trial court lacked authority to exclude the breath test

results on that basis.7 Courtney also argues that the judgment can be affirmed because the

Director’s evidence established that the most recent calibration verification had been performed

using a single standard simulator solution having a vapor concentration of .100%. Courtney

7
Even if the breath test results were admissible, I recognize that the trial court, as fact-
finder, would still have to determine what weight to give to that evidence. Because it excluded the breath
test results, the trial court did not assess the reliability of that evidence, and a remand would be necessary
to give the court the opportunity to address this factual issue. See Collins, 399 S.W.3d at 102-03.

9
argues that under 19 CSR 25-30.051(2), the calibration verification was required to be performed

using simulator solutions having three different vapor concentrations.

The majority does not address this issue. In addition, the Missouri Supreme Court heard

argument on September 1, 2015, in a case raising this question. Stiers v. Dir. of Revenue,

No. SC94840. Because the Supreme Court will soon decide a case addressing the question, I

would hold this case pending a decision in Stiers.

Conclusion

Contrary to the majority, I do not believe the judgment in this case can be affirmed on the

basis of the Director’s failure to present evidence satisfying the NIST-thermometer requirement,

because Courtney did not timely object to admission of the breath test results on this basis. With

respect to Courtney’s argument that the calibration verification of the breath analyzer failed to

comply with 19 CSR 25-30.051(2) because only a single standard simulator solution was used, I

would hold this case pending the Missouri Supreme Court’s resolution of the same issue in Stiers

v. Director of Revenue, No. SC94840.

Alok Ahuja, Chief Judge

10