State v. Ammon

Missouri Court of Appeals

State v. Ammon

826 S.W.2d 103, 1992 Mo. App. LEXIS 493, 1992 WL 47657

CourtMissouri Court of Appeals

DecidedMarch 17, 1992

DocketNo. WD 44499

StatusPublished

Cited by1 cases

This text of 826 S.W.2d 103 (State v. Ammon) 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

State v. Ammon, 826 S.W.2d 103, 1992 Mo. App. LEXIS 493, 1992 WL 47657 (Mo. Ct. App. 1992).

Pincite

Opinion

PER CURIAM.

Appellant was convicted upon jury trial of driving while intoxicated, § 577.010, RSMo., and was punished by fine of $350. He appeals, charging that the court erred in the admission in evidence of the results of a Breathalyzer test showing appellant’s blood alcohol content to be .112 percent.

When such evidence was offered, defendant objected on the ground: “There is no evidence showing that the machine was tested any periods to determine if it was functioning properly. We think that’s necessary to have a proper foundation for admission of any reading.”

Defendant’s objection was well taken. The burden was upon the State to show compliance with the testing requirement of 19 CSR 20-30.031(3), which requires the Breathalyzer to have been tested within the preceding 35 days. This showing was foundational, and in the absence thereof, the results of the Breathalyzer test were not admissible over defendant’s objection. Sellenriek v. Director of Revenue, 826 S.W.2d 338 (Mo. banc 1992); Woodall v. Director of Revenue, 795 S.W.2d 419 (Mo.App.1990).

Judgment of conviction reversed, and cause remanded for a new trial.

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