State v. Hendel, s. 33689
| Decision Date | 25 May 1971 |
| Docket Number | Nos. 33689,33742,s. 33689 |
| Citation | 468 S.W.2d 664 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Max HENDEL, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Thomas I. Osborne, Pros. Atty., Montgomery County, Montgomery City, for plaintiff-respondent.
James G. Gregory, Montgomery City, for defendant-appellant.
CLEMENS, Commissioner.
Appeal from a driving-while-intoxicated conviction, based in part on evidence converting a Breathalyzer reading of percentage of alcohol by volume to its equivalent percentage of alcohol by weight. Before reaching the merits we must first untangle the procedural web spun by defendant's premature appeal taken before final judgment.
In a trial before the court without a jury the court found defendant guilty of driving a motor vehicle while intoxicated. (§ 564.440 1). The court then stated defendant's punishment would be a fine of $300. There was neither allocution nor judgment at that time. In due time defendant filed a motion for new trial; it was overruled by operation of law on October 23, 1969 2. On October 30, 1969, before the trial court had formally pronounced judgment, defendant filed a notice of appeal, No. 33,689. Since that appeal was taken before final judgment it was premature and must be dismissed. State v. Chase, Mo., 415 S.W.2d 731.
Later, on January 7, 1970, in accordance with its previous findings, the trial court granted allocution and sentenced the defendant to pay a $300 fine. This was a final judgment. Six days later the defendant filed a second notice of appeal, No. 33,742. That appeal is properly before us for determination.
Two law officers stopped defendant on the night of July 17, 1968 when he was driving erratically on the streets of Wellsville, Montgomery County. They testified he smelled of alcohol, walked unsteadily, spoke in a slurred voice, and in their opinion was intoxicated. Defendant submitted to a chemical analysis by a Breathalyzer to determine the alcoholic content of his blood. It showed the percentage of alcohol in defendant's blood was twenty-two one-hundredths of one per cent by volume. An expert witness testified, over objection, that was equal to twenty one-hundredths of one per cent by weight.
Before reaching the critical issue concerning admissibility of this evidence we take up defendant's initial Point Relied On: 'The use of the breathalyzer was not based on legislative standards, nor was its scientific accuracy established, nor were the methods for its use properly established.' This is but a sweeping series of abstractions. The point ignores Civil Rule 83.05(a) (3) and (e), V.A.M.R., which prohibits abstractions and requires an appellant to challenge specific rulings of the trial court by stating precisely wherein and why those rulings are wrong. Counsel for the State complains he cannot respond intelligently to defendant's vague, sweeping challenge; we share his dilemma. As we pointed out in Lane v. Katt, Mo.App., 421 S.W.2d 544, a Point Relied On 'should be used as a target pistol firing at a bull's-eye, not as a shotgun firing at clay pigeons.' Our condemnation of defendant's Point Relied On parallels our ruling in DeCharia v. Fuhrmeister, Mo.App., 440 S.W.2d 182(2--4).
Civil Rule 83.09 V.A.M.R. authorizes us to suspend a rule if justice so requires, but in the light of the State's evidence hereafter recited about the Breathalyzer's accuracy and methods of its use we cannot say justice requires appellate consideration of the faulty Point Relied On.
Defendant does not challenge the sufficiency of the State's evidence by the two arresting officers to show he was intoxicated. (Compare State v. Paul, Mo.App., 437 S.W.2d 98(1)). Instead, he attacks the court's action in admitting expert testimony that although a Breathalyzer does measure percentage of alcohol in a person's blood by volume that percentage can be mathematically converted to the percentage of alcohol in blood by weight, as required by § 564.441. (See State v. Corsiglia, Mo.App., 435 S.W.2d 430.)
Section 564.441 says the chemical analysis must be performed by persons licensed by and according to methods, approved by the State Division of Health. We relate the State's foundation evidence to support the admission of evidence that the chemical analysis of defendant's blood showed intoxication.
Mr. Afton Ware was a graduate chemist employed in the Missouri State Highway Patrol's technical laboratory, licensed by the Division of Health to determine alcoholic content of blood from breath samples. He had tested the chemical ampoules used in the Highway Patrol's Breathalyzers and determined they met the specifications prescribed by the Breathalyzer's designer and manufacturer.
Trooper John H. Ford of the Highway Patrol had special training in testing Breathalyzers and was licensed by the Division of Health to supervise and instruct operators in their use. He made monthly inspections of every Breathalyzer in the F Troop area. Sixteen days before the defendant's Breathalyzer test Trooper Ford had inspected the device and established its accuracy by five prescribed testing routines.
Sergeant Jack Huffman, in charge of Breathalyzer testing in the Highway Patrol's Troop F area, had special training in testing and maintaining Breathalyzers and was licensed by the Division of Health to supervise and instruct operators in their use. Twelve days after the defendant's Breathalyzer test Sergeant Huffman tested the device and found it working normally.
Corporal Sterling Green of the Highway Patrol had been specially trained and licensed by the Division of Health to conduct Breathalyzer tests. The prescribed test included use of a seven-point checklist, introduced in evidence. Some 40 minutes after defendant's arrest Corporal Green tested his breath on the Breathalyzer in question, using the prescribed checklist. It recorded twenty-two hundredths of one per cent of alcohol in defendant's blood, computed by volume.
The State's critical witness was Don M. Long, a graduate chemist and 30-year employee in charge of the Division of Health's laboratory section. Together with his chief, a Dr. Spurrier, who was director of the Division's central laboratories, he took part in selecting the Breathalyzer as the approved instrument for testing...
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