State v. Corsiglia
| Decision Date | 22 November 1968 |
| Docket Number | No. 33207,33207 |
| Citation | 435 S.W.2d 430 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Frank Louis CORSIGLIA, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Benson Cytron, House Springs, for defendant appellant.
Michael M. Mihm, Asst. Pros. Atty., Clayton, for plaintiff respondent.
CLEMENS, Commissioner.
On this appeal we hold that the trial court erred in admitting evidence of a 'Breathalyzer' test showing the percentage of alcohol in the defendant's blood.
The defendant was convicted of driving while intoxicated and fined $100. He appeals, challenging the admission of evidence of the result of a Breathalyzer test. Defendant contends the test revealed only a percentage of alcohol in blood computed by volume and failed to show a percentage of alcohol in blood computed by weight as required by § 564.442. V.A.M.S.
That section declares that when a person is charged with driving a motor vehicle while intoxicated, evidence may be introduced to show the amount of alcohol in his blood as indicated by chemical analysis of his breath. It states:
'(3) If there was fifteen-hunredths of one per cent or more by weight of alcohol in the person's blood, this shall be prima facie evidence that the person was intoxicated at the time the specimen was taken.
'(4) Per cent by weight of alcohol in the blood shall be based upon milligrams of alcohol per one hundred milligrams of blood.'
Over the defendant's objection at trial the State introduced the results of a Breathalyzer test. The evidence: Sgt. William R. Montz of the State Highway Patrol was licensed by the Division of Health, Department of Public Health and Welfare, to operate a breath analyzer device approved by the Division; the Breathalyzer was so approved; the defendant voluntarily submitted to a test, performed by approved methods; the test showed the defendant's blood contained seventeen-hunredths of one percent of alcohol.
At the close of evidence the trial court gave Instruction No. 3 declaring that evidence of chemical analysis of breath was admissible to show the amount of alochol in a person's blood; and if that amount was as much as fifteen-hundredths of one percent by weight, that fact was prima facie evidence that the defendant was intoxicated.
The State now contends the Breathalyzer test complied with both the statutory requirements and the Division of Health's rules prescribed thereunder. The Division's authority is granted by § 564.441(2), V.A.M.S.: 'Chemical analysis of the person's breath, to be considered valid * * * shall be performed according to methods approved by the state division of health * * * (which) is authorized to approve satisfactory techniques or methods * * *.'
As a foundation for its evidence of the Breathalyzer test, the State introduced the Division of Health's 'Rules and Regulations for the Determination of the Alcoholic Content of Blood from a Sample of Expired (alveolar) Air.' We note the pertinent parts:
(1) 'Blood Alcohol' is defined: 'The alcoholic content of blood as measured by the percent by weight of alcohol based upon milligrams of alcohol per one hundred milliliters of blood.'
(2) 'Breath Analyzer' is defined: 'A device, approved by the Division, which is capable of measuring the alcohol in the expired (alveolar) air and from which the alcoholic content of the blood can be calculated in milligrams per 100 milliliters of blood.'
(3) The...
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State v. Kays, 57483
...in the blood by volume which properly would be expressed in milliliters and not in milligrams. Respondent concedes that State v. Corsiglia, 435 S.W.2d 430 (Mo.App.1968), and State v. Carwile, 441 S.W.2d 763 (Mo.App.1969), 'have held as reversibly erroneous instructions which misstate the st......
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State v. Chester
...referred to the breathalyzer test or the result thereof. Contrast State v. Thornton, supra. 441 S.W.2d at 742(6); State v. Corsiglia, Mo.App., 435 S.W.2d 430, 431. The only other point advanced by defendant is that the trial court erred in refusing to discharge the jury on defendant's motio......
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State v. Hansen, 55248
...that such a test result is prima facie evidence the defendant was then under the influence of intoxicating liquor. State v. Corsiglia, Mo.App., 435 S.W.2d 430 (1968); State v. Larrabee, 156 Me. 115, 161 A.2d 855 Our statute (section 321.281) makes the existence of more than ten hundredths o......
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State v. Lockamy
...by volume, rather than by weight, are inadmissible evidence. See State v. Carwile, 441 S.W.2d 763 (Mo.Ct.App.1969); State v. Corsiglia, 435 S.W.2d 430 (Mo.Ct.App.1968); State v. Rodell, 17 Wis.2d 451, 117 N.W.2d 278 (1962). The holdings in the Corsiglia and Carwile cases, which defendant re......