328 S.W.3d 745
Mo. Ct. App.2010Background
- Missouri appeals an order suppressing evidence from a pre-arrest portable breathalyzer test (PBT) in Robertson’s DWI case.
- Officer Sublette stopped Robertson for speeding and observed a strong odor of alcohol and other indicia of intoxication.
- Robertson submitted to a PBT at 2:03 a.m. and a second reading at 2:23 a.m., which showed readings above 0.08%.
- The circuit court suppressed the pre-arrest PBT evidence due to a lack of calibration records for the device prior to Robertson’s arrest.
- The State argued pre-arrest PBT results are admissible to show probable cause under § 577.021.1, but the circuit court did not rely on them for probable cause.
- On appeal, the Western District affirmed suppression, holding calibration credibility issues affect probative value for probable cause.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Can pre-arrest PBT results establish probable cause? | Robertson | Robertson | No; PBT results alone cannot establish probable cause where calibration/credibility are in doubt. |
| Does lack of calibration history defeat credibility of PBT results for probable cause? | State | Robertson | Yes; credibility depends on calibration history; lack of calibration undermines reliability. |
| Should the court admit and rely on PBT results for probable cause given statutory limits? | State | Robertson | Court may admit PBT results for probable cause, but credibility requires calibration evidence; here it did not. |
Key Cases Cited
- York v. Dir. of Revenue, 186 S.W.3d 267 (Mo. banc 2006) (lack of calibration affects credibility of PBT evidence)
- Paty v. Director of Revenue, 168 S.W.3d 625 (Mo.App.2005) (circuit court may disregard unreliable PBT results)
- State v. Duncan, 27 S.W.3d 486 (Mo.App.2000) (PBT admissible only to indicate presence of alcohol for probable cause)
- Sund v. Sund, 215 S.W.3d 719 (Mo. banc 2007) (deference to circuit court on credibility findings)
- Peery v. State, 303 S.W.3d 150 (Mo.App.2010) (review standard for suppression rulings; credibility matters)
- Stottlemyre v. Dir. of Revenue, 35 S.W.3d 854 (Mo.App.2001) (breathalyzer/calibration considerations for reliability guidance)