Appellate Court allows Portable Breath Test results for probable cause

A recent Missouri Court of Appeals, Southern District opinion held that the state statute provides that a portable breath test result is admissible to show probable cause of a driver’s intoxication, but that it depended on the test’s numerical reading, which is therefore admissible for that purpose.

The case was an appeal to the Missouri Court of Appeals, Southern District from Greene County. Judge Mary W. Sheffield, P.J., authored the opinion, with Judges Gary W. Lynch and Don E. Burrell concurring.

The Defendant, Charles Hollis Roux, was charged with driving while intoxicated. The defendant filed motion to suppress all evidence in the case. The trial court granted the motion and the State appealed. The state raised two points of alleged error. First, State argued that trial court’s decision was not supported by substantial evidenced, and, second, that the trial court erred in refusing to admit the result of the portable breath test. Because the State’s second point had merit, the appellate court reversed and remanded the case. “Moreover, as the admission of the test result will add additional relevant evidence for the trial court to consider on remand, we need not address the State’s first point,” the opinion stated.

The appellate court went on to day: “It is true the admissibility of the result of a portable breath test is “narrowly restricted by statute.” State v. Morgenroth, 227 S.W.3d 517, 521(Mo. App. S.D. 2007). The statute permits specified law enforcement officers to administer pre-arrest chemical tests of a suspect’s blood alcohol content under certain circumstances.2 § 577.021.1. Moreover, “[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.” § 577.021.3. That is, the result of a portable breath test is admissible to show an officer had probable cause to arrest. See, e.g., Morgenroth, 227 S.W.3d at 522 (quoting § 577.021.3).”

The appellate court went on to conclude: ” On remand the trial court should consider the unstricken testimony that the result of the portable breath test was greater than .08 percent and reevaluate its determination of the existence of probable cause in light of all of the evidence and argument presented at the hearing.

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