Driver’s License: Suspension-Portable Breathalyzer Test

The director appealed the trial court’s grant of petitioner’s petition to set aside the suspension of his driving privileges. The director sought a suspension after petitioner was arrested for DUI. At trial, the director attempted to admit records purporting to show the results of a portable breathalyzer test performed on petitioner. The trial court excluded the evidence, accepting petitioner’s objection that there was no foundation that the breathalyzer had been properly calibrated or operated.

Where statutory law did not require proof of calibration or correct use to admit the numerical result from a portable breathalyzer as evidence of probable cause for arrest, the trial court erred in excluding the director’s evidence.

Judgment is reversed and remanded.

Acevedo v. Director of Revenue (MLW No. 79611/Case No. SD37588 – 5 pages) (Missouri Court of Appeals, Southern District, Borthwick, J.) Appealed from circuit court, Carter County, Lynxwiler, J.