State v. Stottlemeyre
| Decision Date | 23 January 2001 |
| Citation | 35 S.W.3d 854 |
| Parties | (Mo.App. W.D. 2001) . State of Missouri, Respondent v. Monte L. Stottlemeyre, Appellant. WD58040 Missouri Court of Appeals Western District Handdown Date: 0 |
| Court | Missouri Court of Appeals |
Appeal From: Circuit Court of Platte County, Hon. Owens L. Hull, Jr.
Counsel for Appellant: Jeffrey S. Eastman
Counsel for Respondent: Breck K. Burgess
Opinion Summary: Monte L. Stottlemyre appeals his conviction by a jury of driving while intoxicated. He was sentenced as a prior and persistent intoxication-related offender under section 577.023, RSMo 1994, and as a prior and persistent offender under section 558.016, RSMo 1994, to eight years imprisonment.
AFFIRMED.
Division One holds:
(1) The trial court did not err in overruling Stottlemeyre's objections to the admission of his pre-arrest breath test results. His argument that the State failed to lay a proper foundation for the test is without merit, because the provisions of section 577.026, RSMo 1994, do not apply to tests conducted under section 577.021, RSMo Cum. Supp. 1997.
(2) The trial court did not err in finding that he was a persistent alcohol-related-traffic offender. Stottlemyre failed to preserve his challenge to the constitutionality of section 577.023, RSMo Cum. Supp. 1998, because he failed to raise the issue at the earliest opportunity. Even if the issue had been preserved, Stottlemyre lacks standing to pursue his constitutional challenge because he has not shown that he was adversely affected by the amended statute. Whether Senate Bill 634 was constitutional or unconstitutional is immaterial in this case since the 1998 amendment to section 577.023, RSMo 1994, did not govern Stottlemyre's conviction. The trial court's ruling is proper under the version of the statute in effect at the time he committed the offense.
Monte L. Stottlemyre was convicted by a jury of driving while intoxicated, section 577.010, RSMo 1994. Following the conviction, he was sentenced as a prior and persistent intoxication-related offender under section 577.023, RSMo 1994, and as a prior and persistent offender under section 558.016, RSMo 1994, to eight years' imprisonment. On appeal, Mr. Stottlemyre claims that the trial court erred in overruling his objections to the admission of evidence of the pre-arrest breath test results. He alleges that the State failed to provide evidence that the chemical testing device or procedure had been approved by the Missouri Department of Health pursuant to section 577.026, RSMo 1994. As a result, he claims that no foundation was laid for the admission of the test. Secondly, Mr. Stottlemyre challenges the constitutionality of section 577.023, RSMo Cum. Supp. 1998, under which he claims he was convicted as a persistent alcohol-related offender because Senate Bill 634, which amended section 577.023, related to more than one subject and the title did not clearly express the purpose of the bill. Because this court finds that the requirements of section 577.026 do not apply to a pre-arrest breath test and that Mr. Stottlemyre failed to preserve and lacks standing to pursue his constitutional challenge to section 577.023, RSMo Cum. Supp. 1998, the judgment of the trial court is affirmed.
On September 8, 1997, Mr. Stottlemyre was driving a maroon vehicle westbound on Highway 291 in Platte County, Missouri. His mother, Betty Foster, and his girlfriend, Mary Brock, were passengers in the car. As Mr. Stottlemyre passed over the Highway 291 overpass at Interstate 435, Trooper Michael Moats of the Missouri State Highway Patrol observed the car Mr. Stottlemyre was driving past him at a high rate of speed. Trooper Moats checked Mr. Stottlemyre's speed with his laser radar and the radar indicated that he was traveling at a speed of 75 miles per hour. The posted speed limit in that area of Highway 291 is 55 miles per hour. Trooper Moats activated his lights and pursued the vehicle.
After Mr. Stottlemyre stopped the vehicle, Trooper Moats approached him and asked for his driver's license. Mr. Stottlemyre responded by giving Trooper Moats a Missouri Identification card. When asked about his license, Mr. Stottlemyre responded that he did not have one. During this contact with Mr. Stottlemyre, Trooper Moats detected a very strong odor of alcohol on Mr. Stottlemyre's breath. He also observed that Mr. Stottlemyre's words were slurred and he mumbled when he spoke. Believing Mr. Stottlemyre was "obviously intoxicated," Trooper Moats asked him to get out of the car and stand between the two vehicles. Trooper Moats observed that Mr. Stottlemyre had a sway to his walk as he approached the area between the two vehicles. At that point Trooper Moats administered a Horizontal Gaze Nystagmus Test, which tests for involuntary jerking of the eye and looks for a level of intoxication. This test showed positive indicators for intoxication. Trooper Moats then administered a pre-arrest breath test. The test was given on a portable breathalyzer in which a person blows into a small chamber that gives an analysis of the sample of breath. When the results of the portable breath test indicated the presence of alcohol, Trooper Moats normally would have conducted additional field sobriety tests prior to placing the subject under arrest. He determined that for safety concerns, however, no further field testing should be done because of the conditions of the road where they were stopped and because of Mr. Stottlemyre's level of intoxication. Trooper Moats placed Mr. Stottlemyre under arrest.
Mr. Stottlemyre was transported to the Platte County Jail, where he was advised of his rights by Trooper Moats. According to department regulations, Trooper Moats then asked Mr. Stottlemyre to perform two additional field sobriety tests, the walk-and-turn test and the one-leg-stand test. Mr. Stottlemyre was unable to complete these tests. He was then asked and refused to submit to a breath test to measure the actual content of alcohol in his blood.
Mr. Stottlemyre was charged by information with driving while intoxicated in violation of section 577.010. The information alleged that Mr. Stottlemyre was a prior and persistent intoxication-related offender under section 577.023, because he had two prior driving while intoxicated convictions in May 1990 and July 1996. It also alleged that he was a prior offender under section 558.016, because of a prior conviction for involuntary manslaughter on March 31, 1987, and a prior conviction for attempt to commit burglary in the first degree on January 10, 1994.
A trial was held on October 18, 1999, and a jury convicted Mr. Stottlemyre of driving while intoxicated. The trial court, having found prior to submission to the jury that Mr. Stottlemyre was a persistent intoxication-related offender as defined in section 577.023, and a persistent offender under section 558.016, sentenced him to eight years' imprisonment. This appeal followed.
The Requirements of section 577.026, RSMo 1994,
In Mr. Stottlemyre's first point, he claims that the trial court erred in overruling his objections to the admission of the results of the portable breath test administered to him because there was no evidence that the chemical testing device or procedure had been approved by the Missouri Department of Health pursuant to section 577.026, RSMo 1994.1 He argues that because the State failed to show that the portable breath test administered to him met the requirements of section 577.026, the State failed to lay a proper foundation for the admission of the test results.
A trial court has broad discretion in determining whether evidence should be admitted or excluded. State v. Hirt, 16 S.W.3d 628, 634 (Mo. App. 2000). This court will reverse such a determination only where it is shown that the trial court clearly abused its discretion. Id. An abuse of discretion will be found "where the ruling is clearly against the logic of the circumstances and is so unreasonable and arbitrary that it shocks the sense of justice and indicates a lack of careful consideration." State v. Masden, 990 S.W.2d 190, 193 (Mo. App. 1999). For this court to reverse a lower court's decision to admit evidence, the defendant must have been prejudiced and the admission of the evidence must have been "so prejudicial that it deprived the defendant of a fair trial." State v. Merrill, 990 S.W.2d 166, 170-71 (Mo. App. 1999).
In determining whether the admission of the evidence of the portable breath test was an abuse of discretion, this court first considers the nature of the test and the statutory requirements for admission of such evidence. The portable breath test is a device used to detect the presence of alcohol on a person's breath and provides probable cause for arrest. State v. Duncan, 27 S.W.3d 486, 488 (Mo. App. 2000). The results are not used to establish blood alcohol content in determining whether a person is intoxicated. The use of such tests is governed by section 577.021, RSMo Cum. Supp. 1997,2 which reads as follows:
A member of the state highway patrol may, prior to arrest, administer a chemical test to any person suspected of operating a motor vehicle in violation of section 577.010 or 577.012. A test administered pursuant to this section shall be admissible as evidence of probable cause to arrest and as exculpatory evidence, but shall not be admissible as evidence of blood alcohol content. The provisions of section 577.020 shall not apply to a test administered prior to arrest pursuant to this section.
The last line of the statute exempts pre-arrest breath tests from the requirements and provisions of section 577.020, RSMo Cum. Supp. 1997.3 Section 577.020 provides that any person who operates a motor vehicle on Missouri...
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