Bautista v. Director of Revenue, WD

• Decision Date: 08 December 1992
• Docket Number: No. WD,WD
• Citation: 843 S.W.2d 1
• Parties: Francisco BAUTISTA, Appellant, v. DIRECTOR OF REVENUE, State of Missouri, Respondent. 46026.
• Court: Missouri Court of Appeals

Page 1

843 S.W.2d 1

Francisco BAUTISTA, Appellant, v. DIRECTOR OF REVENUE, State of Missouri, Respondent.

No. WD 46026.

Missouri Court of Appeals,

Western District.

Dec. 8, 1992.

Dennis H. Hunt, Kansas City, for appellant.

William L. Webster, Atty. Gen., James A. Chenault, III, Sp. Asst. Atty. Gen., Jefferson City, for respondent.

Before FENNER, P.J., and TURNAGE and SPINDEN, JJ.

FENNER, Presiding Judge.

Appellant, Francisco Bautista, appeals the judgment of the trial court finding that the suspension or revocation of his driver's license was authorized as required by Sections 302.500 through 302.540, RSMo 1986, upon the court's finding of probable cause to believe that Bautista was driving with alcohol concentration in his blood at .13 per cent or more by weight. Bautista argues on appeal that the trial court erred in admitting the results of the breath analysis test administered to him.

A Breathalyzer Model 900A was used to administer a breath analysis test to Bautista in the case at bar. The operating procedure for a Breathalyzer Model 900A is addressed in Missouri Department of Health Regulation 19 CSR 20-30.060(1). This regulation provides a form to be completed when a breath analysis test is administered on a Breathalyzer Model 900 or 900A (Form # 1). Form # 1 provides, among other matters, for the breathalyzer operator to check certain boxes as part of the certification by the officer that the test was properly administered. Form # 1 also provides spaces for the date of the test and the name of the subject of the test.

Officer Deborah Randol administered the breath analysis test to Bautista. Officer Randol used a breath analysis test form provided by the Kansas City, Missouri Police Department in administering the test (KC Form).

In his first point on appeal, Bautista argues that the trial court erred in admitting the results of his breath analysis test because there was insufficient foundation for its admission into evidence. Bautista argues that the KC Form did not comply with the requirements of 19 CSR 20-30.060(1), Form # 1. Specifically, Bautista argues that the KC Form did not provide boxes to be checked as part of the certification by the officer administering the test and, further, that the KC Form did not provide spaces for the date of the test or the name of the subject to whom the test was administered.

A similar argument to that raised by Bautista was recently decided by this court in Young v. Director of Revenue, 835 S.W.2d 332 (W.D.Mo.App.1992). In Young, the breath analysis test was conducted on an Intoximeter 3000, rather than a Breathalyzer Model 900A as was used in the case at bar. Id. at 333. Young argued in his appeal that the breath analysis test report used by the Kansas City Police Department was not the same form as the form prescribed under 19 CSR 20-30.060(3). Id. at 333. In Young, the court analyzed the approved form against the form used, and found the form used to be in conformity with the approved form except for an insignificant variation in information requested and lack of boxes to be checked in the portion of the Kansas City Police Department Form where the form was certified by the officer administering the test. Id. at 333-34.

In Young, the court held that in a trial de novo, pursuant to Section 302.535, RSMo 1986, the prima facia proof of the Director of Revenue's case is not confined to the reports and records available, but rather may be proved by all available evidence. Id. at 334-35. Young allowed for the admission of evidence by way of testimony of the officer who administered the breath analysis test to show compliance with the Department of Health Regulations in addition to the content of the official breath analysis test report. Id. at 334-35 (citing Leach v. Director of Revenue, 705 S.W.2d 125, 127 (Mo.App.1986)).

In Shine v. Director of Revenue, 807 S.W.2d 160 (Mo.App.1991), the operator's compliance with 19 CSR 20-30.011(5)(A) was likewise challenged due to his failure to check the boxes in the certification area of the check list on...