Summary
ruling that "[t]his showing [is] foundational, and in the absence thereof, the results of the . . . test [are] not admissible"
Summary of this case from State v. AndersOpinion
No. WD 44499.
March 17, 1992.
APPEAL FROM THE CIRCUIT COURT, CHARITON COUNTY, ROBERT F. DEVOY, J.
Jack D. Lukehart, Brunswick, for appellant.
David A. McAllister, Pros. Atty., Chariton County, Brunswick, for respondent.
Before KENNEDY, P.J., and FENNER and BRECKENRIDGE, JJ.
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.