State v. Eisenhour

• Decision Date: 12 November 2013
• Docket Number: No. SD 32441.,SD 32441.
• Citation: 410 S.W.3d 771
• Parties: STATE of Missouri, Plaintiff–Respondent, v. Steven Douglas EISENHOUR, Defendant–Appellant.
• Court: Missouri Court of Appeals

410 S.W.3d 771

STATE of Missouri, Plaintiff–Respondent,
v.
Steven Douglas EISENHOUR, Defendant–Appellant.

No. SD 32441.

Missouri Court of Appeals,
Southern District,
Division Two.

Oct. 21, 2013.
Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 12, 2013.

[410 S.W.3d 772]

Craig A. Johnston, Columbia, MO, for Appellant.

Chris Koster, Attorney General, and Gregory L. Barnes, Assistant Attorney General, Jefferson City, MO, for Respondent.

GARY W. LYNCH, J.

Steven Douglas Eisenhour (“Defendant”) appeals his conviction, following a jury trial, of the class D felony of driving while intoxicated (“DWT”) in violation of section 577.010.1.¹ Defendant was sentenced as a persistent offender by the court to four years in prison.² On appeal, Defendant claims the trial court erred in excluding evidence that his pre-arrest portable breathalyzer test (“PBT”) numerical result was .002. Finding no error as asserted by Defendant, we affirm.

Factual and Procedural Background

Before trial, the trial court considered the State's motion in limine to exclude “evidence of blood alcohol content from [PBT] results.” The State contended that section 577.021.3 “expressly limits admissibility of results of [PBTs] from being used as evidence of blood alcohol content[,]” “[t]he numerical value provided by [PBTs] represents blood alcohol content[,]” and, therefore, “evidence of a numerical result in this case purporting to represent Defendant's blood alcohol content is inadmissible.” Defendant countered that “the statute is clear that this [PBT] can be used for exculpatory evidence [,]” the statute does not “say that the numerical score is inadmissible[,]” and it was Defendant's position “that below a .08 is exculpatory.” The trial court sustained the State's motion in limine and directed that “there shall be no mention of ... what the test results were in this case on the PBT.”

During the trial, nothing about the PBT or anything related to it was mentioned in the presence of the jury. Viewed in the light most favorable to the verdict, see State v. McFadden, 391 S.W.3d 408, 417 (Mo. banc 2013), the evidence and reasonable inferences therefrom adduced before the jury at trial established the following facts.

On February 20, 2010, Deputy Jason Kent of the Jasper County Sheriff's Office was transporting a prisoner from the Newton County jail back to the Jasper County jail, when he observed Defendant's vehicle in front of him swerving a little. Up ahead of Defendant's vehicle, the lights from a highway patrol vehicle that had another automobile pulled over came into view. In response, Defendant's vehicle swerved a little, slowed down and “almost stopped in the middle of the road,” then pulled off to the side and “kind of stopped.” Defendant then pulled back onto the road and traveled slowly until he reached the point where the patrol vehicle was located. After passing the patrol vehicle, Deputy Kent continued to observe that Defendant was unable to hold his lane and his vehicle was swerving in the lane; Defendant's vehicle kept crossing the center line and swerving over onto the shoulder of the road. Once he entered Jasper County,

[410 S.W.3d 773]

Deputy Kent radioed and asked dispatch to direct another deputy to stop the vehicle; Deputy Kent could not because he had an inmate with him. Based on his training and experience, Deputy Kent believed the driver of Defendant's vehicle could be impaired.

Deputy Kent continued following Defendant's vehicle—which was still swerving, crossing the center line, slowing, and hitting its brake lights frequently—until Deputy Adam Blankenship of the Jasper County Sheriff's Office arrived and pulled it over.

When Deputy Blankenship approached the vehicle after initiating the traffic stop, he observed three people in the vehicle; Defendant was the driver. As Deputy Blankenship talked with Defendant, he could smell the odor of alcohol, which appeared to come from Defendant's breath. Deputy Blankenship observed Defendant's pupils were very constricted, whereas normally at night they would be dilated due to the lack of light. When Deputy Blankenship asked for Defendant's driver's license, Defendant handed him a Missouri ID. card instead. Deputy Blankenship asked Defendant how much he had drunk, and Defendant said three beers.

Defendant failed three field sobriety tests. During the horizontal gaze nystagmus test, Defendant's pupils stayed constricted and did not react at all to the light. Moreover, Defendant's eyes did not smoothly follow Deputy Blankenship's finger from side to side; there was involuntary jerking of the eyes, which indicated possible impairment. According to Deputy Blankenship, if there was no impairment, the eyes would be steady. Both of Defendant's eyes had nystagmus, or involuntary jerking.

Defendant also failed the walk-and-turn test. Defendant said he understood the instructions but did not perform the test in accordance with the instructions. Defendant started before he was told to go. Defendant stopped completely to steady himself, and lost his balance several times, stepping off the line. Defendant also used his arms for balance, contrary to instructions. Defendant failed to maintain a heel-to-toe gait. Defendant took the incorrect number of steps. Finally, Defendant did not do a correct turn at the end of the line and did not walk back down the line as instructed; instead, Defendant walked to the side in a completely different and opposite direction. Defendant's performance on the walk-and-turn test was an indication of intoxication.

The third field sobriety test administered was the one-legged stand test. Defendant was unable to complete this test. Defendant swayed while balancing, put his arms out to maintain his balance instead of leaving them down at the sides as instructed, and put his foot on the ground instead of keeping it raised.

Based upon Defendant's performance on the standard tests, his admission of consuming alcohol, the smell of alcohol on his breath, and the way he had been driving as described by Deputy Kent, Deputy Blankenship believed Defendant had been driving while impaired.

Deputy Blankenship asked Defendant if he had taken anything besides alcohol; Defendant stated he had taken two blue pills but did not know what they were. Deputy Blankenship arrested Defendant for driving while intoxicated and driving while revoked.

Defendant was handed over to the backup officer on the scene, Detective Chad Carr of the Jasper County Sheriff's Office. Detective Carr transported Defendant to the station and intended to conduct an interview for an Alcohol Influence Report and perform post-arrest implied consent

[410 S.W.3d 774]

tests for blood-alcohol content.³ After Detective Carr read Defendant the implied consent warning, he asked Defendant for a breath sample and a urine sample. Defendant had been informed that if he refused to take the test, his driver's license would be immediately revoked for one year and that evidence of his refusal to take the test may be used against him in a prosecution in a court of law. Nevertheless, Defendant refused to provide a breath sample or a urine sample.

While at the station, Detective Carr asked Defendant if he had anything to drink that night, and Defendant said two to three beers. Detective Carr asked Defendant if he had ingested other drugs; Defendant said that between 5:30 and 6:00 p.m., he had taken two pain pills and also had a cigarette worth of K2, a synthetic cannabis or marijuana that, at the time, was legal to consume in the State of Missouri. Defendant said he had ingested the two or three beers at 8:30 p.m. The interview took place shortly before 11:00 p.m.

At the conclusion of Deputy Blankenship's testimony, immediately before the State rested and without any further argument on the issue, Defendant made an offer of proof that, if allowed, his cross examination of Deputy Blankenship would have included the following:

Q (by defense counsel) After the field sobriety test you asked [Defendant] to give a preliminary breath test, correct?

A (by Deputy Blankenship) Yes.

Q And he was able to give you a sample?

A Correct.

Q What was the result of that?

A Point zero zero two.

Q What's the presumptive legal limit in Missouri?

A Point zero eight.

* * *

Q (by prosecutor) This was on your portable breath test equipment that you carry with you in your car?

A Yes.

Q It's not—we're not talking about the Data Master that's calibrated and certified to be accurate down at the station?

A Correct.

Q This is a tool that you use in determining probable cause for arrest?

A Correct.

At the conclusion of the offer of proof, the trial court stated, “The Court stands by its earlier ruling.”

Defendant presented no evidence.

Twelve minutes after leaving the courtroom to deliberate, the jury returned a verdict finding Defendant guilty of driving in an intoxicated condition under the influence of a combination of alcohol and a drug or drugs. The trial court sentenced Defendant as a persistent offender to four years in prison.

Defendant timely appeals, claiming that the trial court's exclusion of Deputy Blankenship's testimony that Defendant's PBT result was .002 was an abuse of discretion because it denied him

his rights to due process, a fair trial, to compulsory process, and to present a defense, as guaranteed by the 6th and 14th Amendments to the United States Constitution and Article I, §§ 10 and 18(a) of the Missouri Constitution, in that this evidence was relevant and material, and it was admissible under § 577.021.3 as exculpatory evidence[.]

[410 S.W.3d 775]

Standard of Review

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