When it comes to DWI cases, the use of breath analyzer equipment is important but the source of its manufacturer is not.

At least that is what a recent Missouri Court of Appeals, Eastern District case decided.

The Director of Revenue was appealing the judgment of a trial court in St. Charles County.  The judgment reinstated the driver’s driving privileges after the Director had suspended them after driver’s arrest for DWI.

The Director’s argument was that the trial court improperly excluded evidence of the Driver’s blood alcohol content (BAC). The court’s decision was based on the Director failing to establish that the Intox EC/IR II breath analyzer used to determine the Driver’s BAC was not manufactured or supplied by a certain company, namely Intoximeters, Inc. of St. Louis.

The appellate court ended up reversing and remanding the decision of the trial court, essentially holding that the source of a breath analyzer is irrelevant.

Case Background

The O’Fallon Police Department responded to the scene of an accident, where a moving car had struck a 2 parked vehicle, turned on its side, and caught fire.

A police officer questioned the driver at the scene, who admitted driving the vehicle with a passenger.

Both driver and passenger appeared intoxicated and could not explain what or how the accident happened. Officer smelled a strong odor of alcohol on the driver and observed him to have bloodshot, glassy eyes. The driver admitted he had been drinking vodka, and that he drank more than usual that day.

The driver was placed under arrest after performing poorly on field sobriety tests.

At the police department, the driver’s breath was tested using an Intox EC/IR II breath analyzer. The BAC was .153 percent. The Director notified the driver it was suspending his driving privileges, and he petitioned the trial court for a trial de novo.

Holding of Case

The Director argued in its appeal that establishing the manufacturer or supplier has no bearing on the reliability of the test results under the regulations. Furthermore, because the operators followed all regulations to ensure proper functioning of the Intox EC/IR II in this case, by identifying it by name and serial number, the test results were admissible.

The Division held that the following statute, 19 CSR 25-30.050 (2014), contains a list of approved breath analyzers, as well as a corresponding list of the manufacturer or supplier of each approved breath analyzer. However, there is no language stating an approved breath analyzer “shall be from” the listed manufacturer or supplier, as appears in a similar regulation relating to calibration materials for breath analyzers.

The opinion explained quoting case law that to lay a foundation for the admission of breath analyzer test results, the Director must establish that the test was performed: “(1) by following the approved techniques and methods of the Division of Health; (2) by an operator holding a valid permit; (3) on equipment and devices approved by the division.”

Yes, the court explained, that the Foundation for admitting breath test results includes “equipment and devices approved by the [D]ivision” of Health and Senior Services, and regulation describes the approved devices by model and “manufacturer or supplier.” But the key to their decision in this case was that the manufacturer or supplier is not among the items in that same regulation’s checklist for operating the breath analyzer.  Therefore, no testimony on where the device came from is necessary to admit the breath analyzer’s results.

The appellate court found that the trial court erroneously excluded evidence of the driver’s BAC and reversed the trial court’s judgment. The case was remanded to the trial court for further proceedings.

The opinion was written by Presiding Judge Gary M. Gaertner, Jr., with judges Phillip M. Hess and Michael E. Gardner concurring.