410 S.W.3d 771
Mo. Ct. App.2013Background
- Defendant stopped after being observed swerving, crossing center line, and driving erratically; officers detected alcohol odor and Defendant admitted drinking beers and taking pills/K2.
- Defendant failed three standardized field sobriety tests; deputies formed probable cause and arrested him for DWI and driving while revoked.
- At the station, Defendant refused post-arrest breath and urine tests.
- Deputy Blankenship administered a pre-arrest portable breath test (PBT) and, per defense offer of proof, the PBT read .002; the State moved to exclude PBT numerical results.
- Trial court granted the motion in limine, barring mention of the PBT numeric result; Defendant offered the result during trial but the court upheld exclusion.
- Jury convicted Defendant of DWI; Defendant appealed arguing exclusion of the .002 PBT result deprived him of his right to present exculpatory evidence under §577.021.3 and the Constitution. The court affirmed.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Eisenhour) | Held |
|---|---|---|---|
| Whether a pre-arrest PBT numerical result is admissible as “exculpatory evidence” under §577.021.3 | §577.021.3 permits PBTs to show presence/absence of alcohol for probable cause or exculpation but expressly bars using PBTs as evidence of blood alcohol percentage (numerical value) | The .002 reading is exculpatory because it shows BAC well below the .08 legal limit and thus should be admissible under the statute’s “exculpatory evidence” clause | The court held the statutory ban on admitting PBTs “as evidence of blood alcohol content” bars numeric PBT results; exclusion was proper and no reversible error was shown |
Key Cases Cited
- State v. Pike, 162 S.W.3d 464 (Mo. banc 2005) (PBT admissible to show presence of alcohol for probable cause but not to prove blood alcohol content)
- State v. Morgenroth, 227 S.W.3d 517 (Mo. App. 2007) (legislature forbade use of PBT to prove intoxication; PBT considered too unreliable for that purpose)
- State v. Stottlemyre, 35 S.W.3d 854 (Mo. App. 2001) (§577.021 concerns pre-arrest tests for probable cause and not for proving BAC)
- State v. Duncan, 27 S.W.3d 486 (Mo. App. 2000) (statutory scheme strictly limits PBT use; calibration and statutory test requirements need not apply to PBTs)
- State v. Robertson, 328 S.W.3d 745 (Mo. App. 2010) (PBT results admissible only within statute’s narrow purpose; calibration not required for PBT admissibility under §577.021)
- Elery v. Commonwealth, 368 S.W.3d 78 (Ky. 2012) (KRS context: court allowed PBT result in non-DUI criminal case but expressly declined to decide its applicability in DUI prosecutions; distinguished by the Missouri court)
- State v. McFadden, 391 S.W.3d 408 (Mo. banc 2013) (standard for viewing evidence in light most favorable to the verdict)