Eckhoff v. Director of Revenue, WD

• Decision Date: 23 February 1988
• Docket Number: No. WD,WD
• Citation: 745 S.W.2d 815
• Parties: Chester L. ECKHOFF, Appellant, v. DIRECTOR OF REVENUE, State of Missouri, Respondent. 39432.
• Court: Missouri Court of Appeals

Page 815

745 S.W.2d 815

Chester L. ECKHOFF, Appellant, v. DIRECTOR OF REVENUE, State of Missouri, Respondent.

No. WD 39432.

Missouri Court of Appeals Western District.

Feb. 23, 1988.

Greg T. Spies, Watson, Ess, Marshall & Enggas, Kansas City, for appellant.

William L. Webster, Atty. Gen., Cynthia B. Green, Sp. Asst. Atty. Gen., Jefferson City, for respondent.

Before GAITAN, P.J., and TURNAGE and CLARK, JJ.

CLARK, Judge.

Chester L. Eckhoff appeals the judgment which sustained revocation of his driver's license pursuant to § 302.505.1, RSMo 1986, ¹ for driving a motor vehicle while intoxicated. The issue on appeal is whether evidence of breathalyzer test results was admissible over objection by Eckhoff that the chemical reagent test vials used in performing the breathalyzer test were not obtained from a source approved by the Missouri Division of Health through amendment to the Code of State Regulations.

The evidence at trial entitled the court to find that in the early morning hours of November 14, 1986, a Kansas City, Missouri police officer observed appellant driving his automobile in an erratic manner. The officer intercepted the vehicle and, together with another officer called to the scene, noted the odor of alcohol on appellant's breath. When appellant stepped out of his car, he stumbled several times and his balance was swaying. Appellant acknowledged he had been drinking.

Appellant was placed under arrest and was taken to a police station where a breath analysis test was performed using a Smith and Wesson 900A Breathalyzer machine. The test results showed appellant's blood alcohol concentration to be .20 percent by weight. Suspension of driving privileges is authorized when blood alcohol level reaches .13 percent. This much of the record is not in dispute but, if the test of appellant's breath was not conducted in conformity with department of health regulations, then cause for revocation was not established.

Numerous cases have held that in order to admit evidence of a breathalyzer test, it must be shown that testing methods set out in § 577.020 were followed in that the test was performed (1) according to the techniques and methods approved by the division of health, (2) by persons possessing a valid permit, and (3) using equipment and devices approved by the division. Jannett v. King, 687 S.W.2d 252, 254 (Mo.App.1985). In this case, it is item (3) which is in question.

It is agreed that the test performed on appellant November 14, 1986 was conducted using a reagent vial or ampule manufactured by National Draeger, Inc. and that on November 14, 1986, the list of approved sources in the then current regulations, 19 C.S.R. § 20-30.050(2), did not include National Draeger. Relying on 19 C.S.R. § 20-30.060, which specifies that tests using the Breathalyzer Model 900A are to employ only chemical reagents obtained from a source approved by the division of health listed in 19 C.S.R. § 20-30.050(2), appellant contends the test in his case was not valid and the test result was inadmissible in evidence.

Additional facts relative to the use of the National Draeger product and disclosed by the evidence are as follows. On January 29, 1986 the director of laboratory services for the Missouri Department of Health reported by letter the results of tests performed on National Draeger test ampules. The tests showed the company's products met the department's specifications and were acceptable for use with the Breathalyzer Models 900 and 900A machines. National Draeger was informed by the letter that its product was being added to the list of approved reagents. On October 3, 1986 the department of health filed with the office of the Missouri Secretary of State a proposed amendment to 19 C.S.R. § 20-30.050 which added National Draeger's reagent to the list of approved sources for breathalyzer testing. That change in the regulations became effective December 25, 1986.

Appellant argues that the letter from the director of laboratory services should not have been admitted in evidence as proof that the department of health had in fact approved the National Draeger product because it was hearsay and was contrary to the state regulations then in effect showing approved equipment and devices. He also argues that the modification of the regulations filed October 3, 1986 was also irrelevant because the notice provided a deferred effective date to December 25, 1986, subsequent to the test performed on appellant. In substance, therefore, appellant urges a strict adherence to the current status of regulations as of the date of testing to determine the foundation necessary before breathalyzer test results are admissible. In making this argument, appellant does not demonstrate or suggest that the National Draeger ampule was tainted or that the test results themselves were adversely affected by use of the then unapproved reagent.

Automobile license revocation proceedings are administrative and civil in nature. They are not criminal or quasi-criminal. State v. Byerly, 522 S.W.2d 18, 20 (Mo.App.1975). In the context of the legislative purpose to remove dangerous drunk drivers from the roadways of Missouri, the strict letter of the D.W.I. law must yield to effectuate the purpose of the law. Collins v. Director of Revenue, 691 S.W.2d 246, 252 (Mo. banc 1985).

The letter to which appellant objected was offered to show, and did effectively prove, that the National Draeger reagents had been tested by the department of health and found to be satisfactory some ten months before the breathalyzer...