A technical glitch in a breathalyzer machine, as long as it didn’t impair the results of the test, is not enough to throw out the blood alcohol content (BAC) result showing intoxication over the limit, according to the appellate court in the Eastern District of Missouri.
In a recent case where a driver’s license was suspended, the court was asked to determine whether the results of a BAC breathalyzer test are admissible. In that case, the printer connected to the machine lost power before it could print a ticket. The lower circuit court judge determined the results were inadmissible and therefore reinstated the defendant’s driving privileges.
The Director of Revenue appealed the judgment of the circuit court which concluded that the Director failed to make a prima facie case for the suspension of the defendant’s driver’s license.
The actual finding of the court was that although the breathalyzer test given to Defendant showed his blood alcohol level exceeded the legal limit, the officer failed to strictly comply with the operational checklist set forth in the statute. The reason was that the printer lost power, resulting in inadmissible and unreliable test results, per se. In this case, the BAC machine was operating on battery power at the time of the test. The machine then lost power prior to printing out the results. The officer quickly plugged the machine in. Then the machine printed the results. No argument was made indicating the officer had erroneously performed the test.
The DOR argues that the circuit court erroneously applied the law in excluding the test
results because there was no evidence the machine malfunctioned or that the digital readout
showing the BAC was over the limit (0.124%) was not accurate.
The appellate court reversed and remanded the decision, holding that the law was misapplied by excluding the results for failure to strictly comply with the printing requirement as outlined in the statute.
This Court went on to say that the appellate court has consistently held that the failure to strictly comply with the procedural requirements of breathalyzer testing does not always warrant the exclusion of breathalyzer test results where there has been “substantive compliance”with the rules promulgated by the Department of Health. The court pointed out the case of Shine v. Dir. of Revenue, 807 S.W.2d 160, 162-63 (Mo.App.E.D. 1991)
In the Shine case, there was reversible error by excluding test results where arresting officer failed to comply with “literal procedural requirements” of operational checklist but there was “substantive compliance” with the rules. The court references Tomkins v.McNeil, 782 S.W.2d 400, 401-02 (Mo.App.W.D. 1989), stating that Missouri courts have held that even where steps in the operational checklist require test results be printed out, a printout is not required for admission of the test results if there had been substantive compliance with the rules.