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Framer v. Director of Revenue2/22/2000
, 829 S.W.2d at 53 ("I would only object to it subject to the machine being proved up later, that the machine was functioning properly before and after"). Consistent with Soutee, 977 S.W.2d at 316, this court holds Childress's inexplicit objection was the equivalent of no objection.
Thus, the consequence of Director's failure to present a maintenance report for the instrument that tested Farmer's breath is the same as if the patrolman's testimony about the result had been received in evidence without objection. Under Bollinger, 936 S.W.2d at 872, and Sherrod, 937 S.W.2d at 753, when evidence of the result of a breath test is received without objection, Director is not required to prove the instrument was maintained in compliance with CSR requirements. Accordingly, this court holds the trial court erred in entering judgment for Farmer on the ground that Director failed in his "burden of proof regarding maintenance of breath analyzer." The judgment must therefore be reversed.
Director concedes Farmer reserved the right to testify if his motion for "directed verdict" was unsuccessful. As this court has found the motion meritless, Farmer is entitled to a remand so he can testify.
The judgment is reversed and this case is remanded to the trial court for further proceedings consistent with this opinion.
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