Young v. Director of Revenue, WD
| Decision Date | 05 May 1992 |
| Docket Number | No. WD,WD |
| Citation | 835 S.W.2d 332 |
| Parties | Kevin W. YOUNG, Appellant, v. DIRECTOR OF REVENUE, Duane Benton, Respondent. 45143. |
| Court | Missouri Court of Appeals |
Dennis H. Hunt, Kansas City, for appellant.
William L. Webster, Atty. Gen., Jefferson City, Tracey L. Dano, Sp. Asst. Atty. Gen., Missouri Dept. of Revenue, Independence, for respondent.
Before SHANGLER, P.J., and KENNEDY and SMART, JJ.
The circuit court on trial de novo found that the initial arrest of the petitioner Young was upon probable cause and that chemical analysis disclosed that the alcohol content of his blood was then .13 percent or more by weight, and ordered that the suspension or revocation of his driver's license was required by §§ 302.500 to 302.540. Young appeals from that order.
Young was stopped for speeding and failing to signal for lane changes and a right hand turn. Officer Kelly of the Kansas City Police Department detected a strong odor of alcohol on his breath. Young admitted the consumption of four sixteen-ounce cans of beer as well as a half a gram of marihuana. The officer formed the opinion that Young was intoxicated, and Young agreed to submit to the breath test. Officer Kelly administered the test on an Intoximeter 3000. He held a Type III permit for such purposes. Officer Kelly followed a checklist in that operation and observed each procedure in the sequence listed, and then certified that there was no deviation from the rules of the department of health relating to the determination of blood alcohol by breath analysis. He certified also that the machine functioned properly during the test procedures and that he was authorized to operate the breathalyzer instrument.
The test result was a blood alcohol level of 0.131%. The checklist and the results of the breathalyzer test were received in evidence. The form used by Officer Kelly was page 3 of the Kansas City Police Department's alcohol influence report. The form required by Missouri Department of Health regulation is Blood Alcohol Test Report # 3. Each constitutes a checklist for the operation of the Intoximeter 3000, the machine Officer Kelly used to administer the breath test. It was that form, completed and then certified by Officer Kelly, that the court received into evidence. Young objected that the exhibit was not the form prescribed by official regulation for a test on the Intoximeter 3000 machine, and hence was not proper evidence. The trial court took judicial notice of 19 CSR 20-30 which delineates the testing requirements for breath analysis machines in this state. The court then compared page 3 of the Kansas City Police Department's alcohol influence report, the form used by Officer Kelly, with the blood alcohol test report Form # 3 promulgated by the department of health for the Intoximeter 3000, and concluded that the form used by Officer Kelly complied with the regulatory requirements. 1
Young points out that for a chemical test to be valid it must be performed in accordance with the "methods, devises and standards" approved by the Missouri Division of Health, and to be admitted into evidence the test must be performed in accordance with those methods, devises and standards. See §§ 577.026. (1) and 577.037.4. The regulations promulgated by the Department of Health, moreover, provide that breath analyzers shall be operated strictly in accordance with the procedures set out in 19 CSR 20-30.060. "An operational checklist, including the certification section, shall be completed with each breath test at the time of the test, by the individual performing the test." 19 CSR 20-30.011(5)(A). Subsection (3) of 19 CSR 20-30.060 directs that when using the Intoximeter 3000 model, the procedures on [form 3] shall be performed and the form shall be completed.
The methods and standards that validate a chemical test result as evidence under these statutes and regulations, Young concludes, refers not only to the devices used and the qualification of the operator, but also to the form designated for the particular device and its completion by the operator. Thus, since the procedures followed by Officer Kelly were those of the Kansas City Police Department form, and not Department of Health Form 3, the Kansas City Police Department alcohol influence report was improperly received as proof of the test results. Moreover, since that was also the form Officer Kelly certified, the chemical analysis the form reported was not admissible as evidence. And since the proper form, properly completed and certified, serves as the statutory "substitute for the common law foundation for the introduction of evidence of analysis for blood alcohol," [citing State v. Regalado, 806 S.W.2d 86, 88 (Mo.App.1991) ] the neglect to use, complete and certify the proper form leaves even the testimony of the officer without basis for admissibility.
In this formulation [so Young argues], the completed checklist on the proper form, properly certified, becomes "in every instance the best evidence" and any account by the police officer witness only "hearsay testimony."
A prima facie foundation for the introduction of breath analysis test results is established if the test is performed according to the techniques and methods approved by the division of health, by an operator holding a valid permit, and by the use of devices and equipment approved by the division. Stuhr v. Director of Revenue, 766 S.W.2d 446, 449 (Mo. banc 1989).
The argument, that the failure of the officer to use and complete the official form prescribed by department regulation will deprive it of efficacy as a foundation for the breathalyzer test result, may have validity in the administrative phase of license suspension or revocation. See § 302.510.1 & .2. That is because, at the administrative phase of a suspension or revocation order, the state may acquit its burden to prove a prima facie case exclusively by the records and report of the chemical test in the file of the Department of Revenue, and the test report is required by statute to "be made on forms supplied by the department or in a manner specified by regulations of the department." § 302.510.2; Stewart v. Director of Revenue, 702 S.W.2d 472, 475 (Mo. banc 1986); Collins v. Director of Revenue, 691 S.W.2d...
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