Bolin v. Director of Revenue

212 S.W.3d 246, 2007 Mo. App. LEXIS 182, 2007 WL 315773
CourtMissouri Court of Appeals
DecidedFebruary 5, 2007
Docket27551
StatusPublished

This text of 212 S.W.3d 246 (Bolin v. Director of Revenue) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bolin v. Director of Revenue, 212 S.W.3d 246, 2007 Mo. App. LEXIS 182, 2007 WL 315773 (Mo. Ct. App. 2007).

Opinion

NANCY STEFFEN RAHMEYER, Presiding Judge.

Timothy L. Bohn (“Appellant”) appeals the judgment upholding the suspension of his driver’s license. Appellant raises one point on appeal challenging the admission of the breath test for lack of a proper foundation. We affirm.

We affirm the judgment of the court unless there is no substantial evidence to support it, unless it is contrary to the weight of the evidence or unless the trial court erroneously declares or applies the law. Verdoorn v. Director of Revenue, 119 S.W.3d 543, 545 (Mo. banc 2003). We review the trial court’s decision to admit or exclude evidence, however, for an abuse of discretion. Vernon v. Director of Revenue, 142 S.W.3d 905, 909 (Mo.App. S.D.2004). An abuse of discretion should only be found when the trial court’s ruling is clearly against the logic of the circumstances, is so arbitrary and unreasonable as to shock the sense of justice and shows a lack of careful consideration. Id.

At trial, the Director had the burden of establishing a prima facie case for suspension of the driver’s license by presenting evidence that at the time of the arrest, there was probable cause for arresting the driver for driving under the influence and that the alcohol concentration in the driver’s blood was .08 percent or more. Id. Appellant does not challenge the probable cause for his arrest but does challenge that the Director made a prima facie case that his alcohol concentration was .08 percent or more. Appellant bases this claim on the admission of the breath test results because the Director “failed to lay a proper foundation for its admission.”

The basis for the finding of the blood alcohol level by the court was through the testimony of Trooper Shannon Crouch, which was admitted without any objection. Trooper Couch testified that he held a valid Type III permit, which authorized him to operate a DataMaster instrument. See 19 CSR 25-30.041 (1999). He testified that he had been trained to follow the steps in using the DataMaster and he checked off each step on the required form as he performed it. After following all of the set-up procedures, he instructed Ap *248 pellant to take a deep breath and blow into the instrument until instructed to stop. Appellant failed to blow into the device long enough to produce a valid sample.

On the second attempt, despite being coached to continue blowing until being instructed to stop, the machine indicated Appellant was not able to submit a complete sample and only a partial sample was taken. Trooper Crouch then used the manual sample override feature, a no-volume button (“NV button”), to obtain a blood alcohol reading of a partial sample. Officer Crouch testified that the button is available for use, that he has never been instructed not to utilize the button, and he was not aware of anything in the Missouri Department of Health Regulations that would prohibit the use of the button. The partial sample indicated a blood alcohol content (“BAC”) of .130. Deputy Bryan Wickam, the holder of a valid Type II permit authorizing him to service the Da-taMaster machine, testified that the use of the NV button produces artificially lower results than a reading not using the override button.

At the end of the trial, the following exchange took place:

The court: You’re offering Exhibit A?
[Director’s Counsel]: Yes, Judge. I’m offering what’s marked as Respondent’s Exhibit A. It’s 15 pages of records of the Missouri Department of Revenue.
I would note to the Court that on the printout page that the trooper alluded to, wé have indicated the time of — the blank test, internal standard and subject sample incomplete reading, we' had indicated the times there and initialed it, because they’re not legible here. It’s 2:25, 2:25, 2:28. And I would offer Exhibit A. Is that your understanding?
[Appellant’s attorney]: Judge, we would, for the record, pose an objection to admission of Exhibit A as to the printouts of the breathalyzer reading, the fact that the foundation has not been properly laid to allow the admission of that and for failure to comply with the Department of Health Regulations.
The court: In what respect?
[Appellant’s attorney]: It respect to [sic] it’s our contention, for the record, that the sample control override button renders this test result invalid. That’s our contention.
The court: All right. It’s admitted.

Appellant brings one point of error, claiming that the trial court erred by admitting the breath test because the Director failed to establish the breath test was administered properly and in accordance with the approved techniques and methods of the Missouri Department of Health due to the trooper’s use of the NV button. Appellant claims the introduction of the driver’s breath test result is “essential to establish a prima facie” case under § 302.505. 1 He further argues, citing Stuhr v. Director of Revenue, 766 S.W.2d 446, 449 (Mo. banc 1989), that the Director has the burden of showing that the test was performed (1) by following the techniques and methods approved by the Missouri Department of Health; (2) by licensed medical personnel or by a person in possession of a valid permit; and (3) using equipment and devices approved by the Missouri Department of Health. We have no quarrel with either of these propositions of law; however, it is incumbent upon Appellant to preserve his claims of error at trial. See Glasscock v. Miller, 720 S.W.2d 771, 777 (Mo.App. S.D.1986) (stating that, in general, the failure to raise a timely objection at trial waives any right to complain on appeal).

*249 Appellant cites to a motion in li-mine and trial counsel’s statements above to support a claim that a proper objection was made to the foundation of the breath test. As to the motion in limine filed prior to trial, Appellant merely claimed that the Director “failed to establish foundational requirements for admissibility of the breath test and ... failed to establish that the breath test was administered properly and in accordance with the approved techniques and methods of the Missouri Division of Health.” That motion preserves no claim of error as a motion in limine is only interlocutory and preserves nothing for appeal. State v. Purlee, 839 S.W.2d 584, 592 (Mo. banc 1992). This is especially true in a case challenging the foundation of evidence that has not even been introduced.

We next address whether the objection made at the end of the trial preserves his claim of error to the admission of the breath test results. We find that it does not.

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Related

Stuhr v. Director of Revenue
766 S.W.2d 446 (Supreme Court of Missouri, 1989)
Glasscock v. Miller
720 S.W.2d 771 (Missouri Court of Appeals, 1986)
Spinner v. Director of Revenue
165 S.W.3d 228 (Missouri Court of Appeals, 2005)
Martise v. Director of Revenue, State
160 S.W.3d 407 (Missouri Court of Appeals, 2005)
Bozarth v. DIRECTOR OF REVENUE, STATE
168 S.W.3d 78 (Missouri Court of Appeals, 2005)
Verdoorn v. Director of Revenue
119 S.W.3d 543 (Supreme Court of Missouri, 2003)
Vernon v. Director of Revenue
142 S.W.3d 905 (Missouri Court of Appeals, 2004)
State v. Purlee
839 S.W.2d 584 (Supreme Court of Missouri, 1992)
Cooley v. Director of Revenue
896 S.W.2d 468 (Supreme Court of Missouri, 1995)
Bradford v. Director of Revenue
72 S.W.3d 611 (Missouri Court of Appeals, 2002)

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Bluebook (online)
212 S.W.3d 246, 2007 Mo. App. LEXIS 182, 2007 WL 315773, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bolin-v-director-of-revenue-moctapp-2007.