Argument of error of breath testing machine fails

Defendant argued before the Western District Court of Appeals that the breath test results used to suspend his license were not admissible because the breath testing machine was not subjected to proper maintenance and reporting.  In the end, his suspension from Lafayette County is upheld and judgment affirmed. 

The issue centered around 19 C.S.R. 25-30.031(3) which states maintenance checks shall be completed when a new instrument is placed into service or when the instrument has been serviced, repaired, or recalibrated.  And in this case, was it an error to complete a maintenance check when an instrument was serviced and sometime thereafter a separate maintenance check of the instrument was done when the instrument was placed back into service?

To admit blood alcohol test results the following foundation requirements must be met: (1) the test was performed by following the approved techniques and methods of the Department of Health; (2) the operator held a valid permit; and (3) the equipment and devices were approved by the Department.

 The Defendant was arrested for DWI and transported to the Ray County Sheriff’s Department.  After being advised of the implied consent law, Defendant agreed to submit to a breath test of his blood alcohol level. 

The breath test was performed using the Intox DMT, Serial Number 500052, and was administered by a State Trooper, who possessed a Type III permit authorizing him to operate the Intox DMT.  The breath test indicated that Defendant’s blood alcohol content (BAC) was .187 percent.  The Trooper followed the steps contained in the operational checklist; certified that there was no deviation from the procedures approved by the Department of Health and Senior Services; and determined that (to the best of his knowledge) the instrument was functioning properly.  

According to the facts of the case, the Intox DMT was used to administer Defendant’s breath test, had been previously transported to Jefferson City, Missouri, where it was upgraded by replacement of its dry gas regulator.  A trained person, who possessed a Type II Permit, replaced the regulator, adjusted the settings, and conducted a maintenance check of the machine on April 24, 2018.   In his April 24, 2018 maintenance report, the person noted:  “Standard change performed. Dry Gas regulator replaced, and settings adjusted.  Stepper motor tension adjusted.”    

The machine was then transported back to the Ray County Jail.   The Trooper at the jail, who also possessed a Type II Permit, conducted a maintenance check on the machine the next day. The instrument was tested and certified as operating in compliance with Department regulations. 

Trooper testified that he did not make any alterations or modification to the instrument in conducting his maintenance check and therefore did not note any alterations to the machine.  He merely placed the instrument back in service, and indicated:  “Return to Service @ Ray Co Jail.”    

The maintenance on the breath test instrument was properly performed within 35 days prior to the test of Defendant’s breath.  The trial court concluded that the breath test result was accurate, reliable, and valid, and sustained the revocation of Defendant’s driving privilege.  For all the reasons above, the Western District appellate court agreed and affirmed the decision.

Opinion was written by Thomas N. Chapman, Presiding Judge, and also heard before Division One Judges Pfeiffer and Gabbert.

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