Farmer v. Director of Revenue

11 S.W.3d 113, 2000 Mo. App. LEXIS 285, 2000 WL 198345
CourtMissouri Court of Appeals
DecidedFebruary 22, 2000
DocketNo. 23004
StatusPublished
Cited by3 cases

This text of 11 S.W.3d 113 (Farmer 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
Farmer v. Director of Revenue, 11 S.W.3d 113, 2000 Mo. App. LEXIS 285, 2000 WL 198345 (Mo. Ct. App. 2000).

Opinion

CROW, Presiding Judge.

A Fair Grove police patrolman arrested Willis Don Farmer for driving while intoxicated June 17, 1996. The patrolman took Farmer1 to jail and administered a “breath test” which produced a “reading” of “.186.”

The Director of Revenue (“Director”) thereafter suspended Farmer’s privilege to drive a motor vehicle. § 302.505.2 The suspension was sustained upon administrative review, § 302.530, whereupon Farmer filed a petition for trial de novo per § 302.535 in the Circuit Court of Greene County.

After hearing evidence, the trial court entered a two-sentence judgment stating:

“The Court finds State has failed in their [sic] burden of proof regarding maintenance of breath analyzer. Judgment for Petitioner.”

Director appeals from that judgment. His sole claim of error is:

“The court below erred in setting aside the suspension of [Farmer’s] driving privilege on the grounds that [Director] did not meet his burden of proof regarding maintenance of the breath analyzer because [Director] did not bear any such burden, in that [Farmer] did not make a proper and timely objection to the introduction of his test result.”

Adjudication of the claim of error requires an account of certain events that occurred at trial.

At the outset, the trial court asked whether there were any “preliminary matters.” This dialogue ensued:

“MR. CHENAULT [3]: Well, Your Hon- or, we have agreed to stipulate to admission of the maintenance report in this matter, which has been labeled as Respondent’s Exhibit B.
MR. CHILDRESS [4]: So stipulated, Your Honor.
THE COURT: All right. Maintenance report is received.”

Chenault5 then presented testimony from the patrolman. That testimony included an account of the circumstances surrounding Farmer’s arrest and a description of Farmer’s performance on some “field sobriety tests” administered by the patrolman.

Upon taking Farmer to jail, the patrolman administered the “breath test” referred to in the first paragraph of this opinion. Asked what instrument he used, the patrolman replied, “It was the Data Master.”

The patrolman avowed he filled out a “checklist” and saw Farmer “blow into the machine.” The patrolman’s testimony continued:

“Q. Did [the Data Master] appear to function normally when he blew into it?
A. Yes, it did.
Q. Did it produce a reading after he blew into it?
A. Yes.
Q. And what was that reading?
MR. CHILDRESS: Your Honor, I’m going to object as to lack of foundation for the admission of that.
MR. CHENAULT:- Well, Your Honor, we’ve already stipulated to the maintenance report coming in. He’s testified he’s had a Type III permit. He’s identified the checklist.
I would further ask ... that you take judicial notice of the Code of State Regulations pertaining to the administration of a breath test ... which, among other things, indicate that the Data Master is [115]*115an approved instrument by the Department of Health; and also contains the operating procedures to be followed when giving the test on the Data Master. I believe that’s the extent of the foundation I need to introduce.
THE COURT: Well, what do you have to do, give the store — I don’t — I’m not catching it, Childress; so, you’re going to have to give the store away, I guess.
MR. CHILDRESS: Your Honor, I’d just like to keep that objection running.
THE COURT: Well, we will overrule the objection. The evidence will come in.
BY MR. CHENAULT:
Q. And what result did you get when you administered the test to Mr. Farmer?
A. .186.”

After Chenault finished presenting Director’s evidence, Childress moved for a “directed verdict on the admission of the breath test.” In support of the motion, Childress pointed out to the trial court that the Data Master printed an “Evidence Ticket” recording the result of Farmer’s test. The ticket showed the serial number of the Data Master as 950069. Childress then directed the trial court’s attention to Exhibit B (the “maintenance report” received in evidence by stipulation). That exhibit pertained to an instrument bearing serial number 601009.6

Recognizing the discrepancy, the trial court mused, “So we don’t have a maintenance report?”

Childress answered, “That’s correct, Your Honor.”

Chenault responded, “I don’t care, Your Honor.” Explaining that remark, Che-nault reminded the trial court that when he (Chenault) asked the patrolman what the test result was, Childress voiced only “a vague objection” about lack of foundation. That objection, said Chenault “was not sufficient to necessitate ... that maintenance be proven up at all.”

The trial court announced it would take the issue “under advisement.”

Childress told the trial court that Farmer “has thought about testifying,” hence Childress wanted to “reserve the right” to present Farmer’s testimony if the trial court denied the motion for “directed verdict.”

The trial court thereupon adjourned the hearing.

After receiving written suggestions from Chenault, the trial court entered the judgment set forth earlier in this opinion.

One of the cases cited in Director’s brief7 is Soutee v. Director of Revenue, 977 S.W.2d 313 (Mo.App. S.D.1998). There, as here, a driver’s license was suspended per § 302.505. Id. at 314. Upon trial de novo, Director presented evidence regarding a “breathalyzer test.” Id. When the officer who administered the test was asked about the result, the driver’s lawyer said: “I would like to just reserve my right to ask that this testimony be stricken upon the conclusion of all their evidence.” Id. The officer then testified the that test “indicated a blood alcohol content of .17%.” Id.

On appeal by Director from a judgment reinstating the license, id., this court held:

“It is incumbent on an objecting party to make the basis of his or her objection reasonably apparent in order to provide the opponent an opportunity to correct [116]*116the error and the court an opportunity to correctly rule the objection....
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In the instant case, [the driver’s] attorney gave no reason for an objection when asking the court to reserve his right to ask that the testimony of the breathalyzer results be stricken. This was insufficient to preserve an objection to the testimony. The attempt to preserve the right to object, being of no avail, was the equivalent of no objection.”

Id. at 315, 316.

This court reversed the judgment in

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11 S.W.3d 113, 2000 Mo. App. LEXIS 285, 2000 WL 198345, Counsel Stack Legal Research, https://law.counselstack.com/opinion/farmer-v-director-of-revenue-moctapp-2000.