State v. Ross
2011 Mo. App. LEXIS 655
| Mo. Ct. App. | 2011Background
- Ross was convicted of driving while intoxicated in Missouri; breathalyzer showed 0.16% BAC.
- Ross objected to admitting breathalyzer results on foundational grounds under the Implied Consent Law.
- Ross argued DHSS-issued permit for the breathalyzer was invalid due to Executive Order 07-05 transferring BAP to MoDOT.
- Executive Order 07-05 aimed to transfer BAP authority; its effective date did not immediately transfer all authority.
- MoDOT had not promulgated its own BAP regulations, and Ziegler held a DHSS permit at the time of testing.
- Eastern District’s Schneider decision held EO 07-05 did not immediately transfer BAP operations; continuity favored admissibility.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether breathalyzer results were admissible given EO 07-05 effects. | Ross argues DHSS permit invalid; no MoDOT regulations thus invalid. | State argues EO 07-05 did not immediately transfer authority; permit valid; testing proper. | Admissible; no error in foundation or permit validity. |
Key Cases Cited
- Potts v. State, 22 S.W.3d 226 (Mo.App. 2000) (outlines foundational requirements for blood alcohol analysis evidence)
- Wisdom v. Dir. of Revenue, 988 S.W.2d 127 (Mo.App. 1999) (requires compliance with Chapter 577 for admissibility)
- State v. Regalado, 806 S.W.2d 86 (Mo.App. 1991) (absolute compliance prerequisite for admissibility of BAC evidence)
- Schneider v. Dir. of Revenue, 339 S.W.3d 533 (Mo.App.E.D.2011) (EO 07-05 did not immediately transfer BAP; continuity preserved)
- Bland v. Dir. of Revenue, 324 S.W.3d 451 (Mo.App.2010) (implied consent advisement and related procedures)