State of Missouri v. Christopher Pickering
473 S.W.3d 698
| Mo. Ct. App. | 2015Background
- On Nov. 24, 2013 Trooper Gilliland stopped Christopher Pickering after observing erratic driving (weaving, occupying two lanes, abrupt exit without signaling).
- Trooper smelled alcohol, observed bloodshot/glassy eyes, slurred speech, and noted Pickering steadied himself on the patrol car.
- Pickering admitted drinking (initially two Bloody Marys, later three) and submitted to field sobriety tests: 6/6 HGN clues, failed one-leg-stand and walk-and-turn, poor alphabet and countdown performance.
- Breath testing on a DataMaster produced a .136% BAC (second sample; first invalid); printouts were admitted at trial.
- Trial court convicted Pickering of misdemeanor DWI and sentenced him to ten days jail; on appeal he challenged admission of the breath test and argued prejudice from its admission.
Issues
| Issue | Pickering's Argument | State's Argument | Held |
|---|---|---|---|
| Admissibility of DataMaster breath test | Foundation lacking because simulator used to verify/calibrate the DataMaster was not shown to have been NIST-certified in 2013 as required by 19 C.S.R. 25-30.051(4) | Breath test was properly performed and results reliable; foundation sufficient | Reversed: State failed to show required NIST certification for the simulator; admission of breath results was error |
| Prejudice from erroneous admission of breath results | Admission was prejudicial; without BAC evidence conviction cannot stand; seek discharge | Even without BAC, other observational and FST evidence supports conviction; harmless error standard should apply | Reversed for prejudice: trial judge expressly relied on the .136 printout, so admission was not harmless; remand for new trial or further proceedings |
Key Cases Cited
- State v. Ostdiek, 351 S.W.3d 758 (Mo. App. W.D.) (admissibility of blood alcohol analysis requires literal compliance with Chapter 577 foundation)
- State v. Ross, 344 S.W.3d 790 (Mo. App. W.D.) (breath test admissibility requires approved methods, qualified operator, and approved equipment)
- Carter v. Dir. of Revenue, 454 S.W.3d 444 (Mo. App. W.D.) (failure to prove required equipment certification precludes admission)
- State v. Crews, 406 S.W.3d 91 (Mo. App. W.D.) (in judge-tried cases, inadmissible evidence presumed not to prejudice unless judge relied on it)
- State v. Seitz, 384 S.W.3d 384 (Mo. App. S.D.) (state need not prove BAC when physical-observation evidence shows intoxication)
- State v. Pilant, 437 S.W.3d 838 (Mo. App. S.D.) (elements of intoxication: impairment, presence of substance, causal connection)
- State v. Gittemeier, 400 S.W.3d 838 (Mo. App. E.D.) (physical manifestations and FST failure can prove intoxication without chemical test)
- State v. Major, 815 S.W.2d 499 (Mo. App. E.D.) (when chemical evidence is excluded but other evidence could support conviction, remand for new trial)