In Division
DYLAN ACEVEDO, ) ) Respondent, ) ) No. SD37588 vs. ) ) FILED: March 16, 2023 DIRECTOR OF REVENUE, ) ) Appellant. )
APPEAL FROM THE CIRCUIT COURT OF CARTER COUNTY
Honorable Steven F. Lynxwiler, Judge
REVERSED AND REMANDED
The Director of Revenue (“the Director”) appeals the circuit court’s judgment granting
Dylan Acevedo’s petition for trial de novo to set aside the Director’s order suspending
Acevedo’s driving privileges. 1 Finding merit in the Director’s sole point on appeal, which
challenges the court’s exclusion of evidence at trial, we reverse the judgment and remand for
further proceedings. 2
1 The Director may suspend or revoke a driver’s license “upon a determination that the driver was arrested upon probable cause for driving while intoxicated.” Ridgway v. Dir. of Revenue, 573 S.W.3d 129, 133 (Mo.App. 2019). “The driver may then seek review of the suspension or revocation through a trial de novo.” Id. It is the Director’s burden to prove, by a preponderance of the evidence, “there was probable cause to arrest the driver for driving while intoxicated and that the driver’s blood alcohol concentration was .08 percent or more.” Id. 2 Acevedo did not submit a brief in this appeal. “There is no penalty for a respondent failing to file a brief, however, this Court is forced to adjudicate the Director’s claim of error without the benefit of whatever argument [Acevedo] might have raised.” Colhouer v. Dir. of Revenue, 283 S.W.3d 284, 286 n.3 (Mo.App. 2009). In answering Acevedo’s petition, the Director affirmatively alleged that the suspension of
Acevedo’s driving privileges was proper because Acevedo was arrested upon probable cause for
operating a motor vehicle with a blood alcohol concentration in excess of statutory limits. At
trial, the Director attempted to admit certified records into evidence (“Exhibit A”), which
included, among others, a record purporting to show the numerical results of a pre-arrest portable
breathalyzer test (“PBT”) administered to Acevedo by Missouri Highway Patrol Trooper
Zachary Ricker.
Acevedo objected to the admission of Exhibit A on the basis that “no foundation [has]
been laid for [the PBT]” because “[t]here’s no evidence it’s been calibrated, maintained, or used
in the manner that the manufacturer suggested.” The Director disputed that any such evidence
was required, stating, “[f]or the [PBT] there is no foundational requirement for its admission into
evidence because it is not an evidentiary test, it is just a tool used to go towards probable cause.”
Acevedo offered the following response: “Well, my objection is they put a printout on what they
say the PBT showed, which is to be used only to show the presence of alcohol, and my objection
is to . . . the figure that they’ve put in the Exhibit A, Judge. There’s no foundation for that.”
After further discussion, Acevedo stated, “[s]o if they want to say that there was the mere
presence of alcohol, you know, I probably can’t dispute that, but my dispute is with the reading
of that.”
Ultimately, the circuit court concluded, “if there is a printout that is attached, based on
that, I think I have to sustain [Acevedo]’s objection based on the lack of foundation on -- on any
of that device’s information other than the mere presence of alcohol.” The court ruled, “[s]o at
this time I’m going to deny the acceptance of [the Director]’s Exhibit A.” The Director then
2 informed the court that there was no further evidence. 3 In response, the court announced, “[t]hen
based on the evidence received here today, the [c]ourt finds the petition for trial de novo is in
fact proved and all the allegations proved today.”
On appeal, the Director contends:
The trial court abused its discretion in excluding [the Director]’s Exhibit A due to lack of foundation for the portable breath test results because the court misapplied the law in that portable breath tests are statutorily exempted from compliance with Department of Health and Senior Services regulations for determining the reliability of evidentiary blood alcohol tests so that no foundation is required to admit portable breath test results for the purpose of establishing probable cause to arrest a driver on suspicion of driving while intoxicated.
We agree.
A circuit court’s judgment in a driver’s license suspension and revocation case, as in any
other court-tried civil case, “will be affirmed unless there is no substantial evidence to support it,
it is against the weight of the evidence, or it erroneously declares or applies the law.” White v.
Director of Revenue, 321 S.W.3d 298, 307-08 (Mo. banc 2010). “As to the admission of
evidence, the circuit court’s decision is reviewed for abuse of discretion.” Vanderpool v.
Director of Revenue, 226 S.W.3d 108, 109 (Mo. banc 2007). “Where the [circuit] court
misapplies the law resulting in the exclusion of evidence, appellate courts will find an abuse of
discretion.” State v. Roux, 554 S.W.3d 416, 418 (Mo.App. 2017).
The use of the PBT is “strictly limited by statute.” State v. Robertson, 328 S.W.3d 745,
751 (Mo.App. 2010). The applicable statute, section 577.021, 4 provides, “[a]ny state, county or
municipal law enforcement officer who is certified pursuant to chapter 590 may, prior to arrest,
administer a chemical test to any person suspected of operating a vehicle . . . while in an
3 The Director did not attempt to redact or remove the PBT result from Exhibit A and then seek the admission of the remaining, not-objected-to portions of the exhibit. 4 All statutory references are to RSMo 2016.
3 intoxicated condition or with an excessive blood alcohol content.” Section 577.021.1. As
relevant here, “[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.” Section 577.021.3 (emphasis added).
Here, Acevedo lodged a foundational objection against the admission of Exhibit A on the
basis that “[t]here’s no evidence [the PBT has] been calibrated, maintained, or used in the
manner that the manufacturer suggested.” Additionally, Acevedo took issue with the numerical
“figure” displayed on the PBT’s printout, arguing that any result is admissible only to the extent
it shows “the mere presence of alcohol,” i.e., is positive or negative for alcohol.
Section 577.021, however, affirmatively states that such calibration requirements, found
in section 577.020, 5 “shall not apply to a test administered prior to arrest pursuant to this
section.” Section 577.021.3; see also Robertson, 328 S.W.3d at 751 (holding “proof of
calibration of the portable breathalyzer machine was not required for admissibility of the results
of the [PBT] under section 577.021”). Moreover, “standing alone, the evidence of a ‘positive’
result is ambiguous.” Roux, 554 S.W.3d at 418. “That is because the actual numerical value of
the test is what makes the result of the [PBT] relevant to the issue of probable cause.” Id. As
Free access — add to your briefcase to read the full text and ask questions with AI
In Division
DYLAN ACEVEDO, ) ) Respondent, ) ) No. SD37588 vs. ) ) FILED: March 16, 2023 DIRECTOR OF REVENUE, ) ) Appellant. )
APPEAL FROM THE CIRCUIT COURT OF CARTER COUNTY
Honorable Steven F. Lynxwiler, Judge
REVERSED AND REMANDED
The Director of Revenue (“the Director”) appeals the circuit court’s judgment granting
Dylan Acevedo’s petition for trial de novo to set aside the Director’s order suspending
Acevedo’s driving privileges. 1 Finding merit in the Director’s sole point on appeal, which
challenges the court’s exclusion of evidence at trial, we reverse the judgment and remand for
further proceedings. 2
1 The Director may suspend or revoke a driver’s license “upon a determination that the driver was arrested upon probable cause for driving while intoxicated.” Ridgway v. Dir. of Revenue, 573 S.W.3d 129, 133 (Mo.App. 2019). “The driver may then seek review of the suspension or revocation through a trial de novo.” Id. It is the Director’s burden to prove, by a preponderance of the evidence, “there was probable cause to arrest the driver for driving while intoxicated and that the driver’s blood alcohol concentration was .08 percent or more.” Id. 2 Acevedo did not submit a brief in this appeal. “There is no penalty for a respondent failing to file a brief, however, this Court is forced to adjudicate the Director’s claim of error without the benefit of whatever argument [Acevedo] might have raised.” Colhouer v. Dir. of Revenue, 283 S.W.3d 284, 286 n.3 (Mo.App. 2009). In answering Acevedo’s petition, the Director affirmatively alleged that the suspension of
Acevedo’s driving privileges was proper because Acevedo was arrested upon probable cause for
operating a motor vehicle with a blood alcohol concentration in excess of statutory limits. At
trial, the Director attempted to admit certified records into evidence (“Exhibit A”), which
included, among others, a record purporting to show the numerical results of a pre-arrest portable
breathalyzer test (“PBT”) administered to Acevedo by Missouri Highway Patrol Trooper
Zachary Ricker.
Acevedo objected to the admission of Exhibit A on the basis that “no foundation [has]
been laid for [the PBT]” because “[t]here’s no evidence it’s been calibrated, maintained, or used
in the manner that the manufacturer suggested.” The Director disputed that any such evidence
was required, stating, “[f]or the [PBT] there is no foundational requirement for its admission into
evidence because it is not an evidentiary test, it is just a tool used to go towards probable cause.”
Acevedo offered the following response: “Well, my objection is they put a printout on what they
say the PBT showed, which is to be used only to show the presence of alcohol, and my objection
is to . . . the figure that they’ve put in the Exhibit A, Judge. There’s no foundation for that.”
After further discussion, Acevedo stated, “[s]o if they want to say that there was the mere
presence of alcohol, you know, I probably can’t dispute that, but my dispute is with the reading
of that.”
Ultimately, the circuit court concluded, “if there is a printout that is attached, based on
that, I think I have to sustain [Acevedo]’s objection based on the lack of foundation on -- on any
of that device’s information other than the mere presence of alcohol.” The court ruled, “[s]o at
this time I’m going to deny the acceptance of [the Director]’s Exhibit A.” The Director then
2 informed the court that there was no further evidence. 3 In response, the court announced, “[t]hen
based on the evidence received here today, the [c]ourt finds the petition for trial de novo is in
fact proved and all the allegations proved today.”
On appeal, the Director contends:
The trial court abused its discretion in excluding [the Director]’s Exhibit A due to lack of foundation for the portable breath test results because the court misapplied the law in that portable breath tests are statutorily exempted from compliance with Department of Health and Senior Services regulations for determining the reliability of evidentiary blood alcohol tests so that no foundation is required to admit portable breath test results for the purpose of establishing probable cause to arrest a driver on suspicion of driving while intoxicated.
We agree.
A circuit court’s judgment in a driver’s license suspension and revocation case, as in any
other court-tried civil case, “will be affirmed unless there is no substantial evidence to support it,
it is against the weight of the evidence, or it erroneously declares or applies the law.” White v.
Director of Revenue, 321 S.W.3d 298, 307-08 (Mo. banc 2010). “As to the admission of
evidence, the circuit court’s decision is reviewed for abuse of discretion.” Vanderpool v.
Director of Revenue, 226 S.W.3d 108, 109 (Mo. banc 2007). “Where the [circuit] court
misapplies the law resulting in the exclusion of evidence, appellate courts will find an abuse of
discretion.” State v. Roux, 554 S.W.3d 416, 418 (Mo.App. 2017).
The use of the PBT is “strictly limited by statute.” State v. Robertson, 328 S.W.3d 745,
751 (Mo.App. 2010). The applicable statute, section 577.021, 4 provides, “[a]ny state, county or
municipal law enforcement officer who is certified pursuant to chapter 590 may, prior to arrest,
administer a chemical test to any person suspected of operating a vehicle . . . while in an
3 The Director did not attempt to redact or remove the PBT result from Exhibit A and then seek the admission of the remaining, not-objected-to portions of the exhibit. 4 All statutory references are to RSMo 2016.
3 intoxicated condition or with an excessive blood alcohol content.” Section 577.021.1. As
relevant here, “[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.” Section 577.021.3 (emphasis added).
Here, Acevedo lodged a foundational objection against the admission of Exhibit A on the
basis that “[t]here’s no evidence [the PBT has] been calibrated, maintained, or used in the
manner that the manufacturer suggested.” Additionally, Acevedo took issue with the numerical
“figure” displayed on the PBT’s printout, arguing that any result is admissible only to the extent
it shows “the mere presence of alcohol,” i.e., is positive or negative for alcohol.
Section 577.021, however, affirmatively states that such calibration requirements, found
in section 577.020, 5 “shall not apply to a test administered prior to arrest pursuant to this
section.” Section 577.021.3; see also Robertson, 328 S.W.3d at 751 (holding “proof of
calibration of the portable breathalyzer machine was not required for admissibility of the results
of the [PBT] under section 577.021”). Moreover, “standing alone, the evidence of a ‘positive’
result is ambiguous.” Roux, 554 S.W.3d at 418. “That is because the actual numerical value of
the test is what makes the result of the [PBT] relevant to the issue of probable cause.” Id. As
such, the failure to admit such a result for this purpose has been held to be an abuse of discretion.
See id. at 419.
Accordingly, a foundation showing that the PBT was “calibrated, maintained, or used in
the manner that the manufacturer suggested” was not required to admit the PBT numerical result
into evidence as proof of probable cause to arrest. Therefore, the circuit court erroneously
5 Under section 577.020.3, a chemical analysis of a person’s breath, blood, saliva, or urine, to be considered valid, “shall be performed according to methods approved by the state department of health and senior services by licensed medical personnel or by a person possessing a valid permit issued by the state department of health and senior services for this purpose.”
4 applied the law and abused its discretion in excluding Exhibit A on the basis of Acevedo’s
objection. The Director’s sole point is granted.
The circuit court’s judgment is reversed and the cause is remanded for further
proceedings consistent with this opinion. We “direct the trial court to admit Exhibit A at a trial
de novo and proceed with the admission of live testimony or other appropriate evidence, if so
requested by the parties.” Erskine v. Director of Revenue, 428 S.W.3d 789, 792-93 (Mo.App.
2014).
BECKY J. W. BORTHWICK, J. – OPINION AUTHOR
JEFFREY W. BATES, J. – CONCURS
MARY W. SHEFFIELD, J. – CONCURS