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Childs v. Director of Revenue10/5/1999
961 S.W.2d 936, 938 (Mo.App.E.D. 1998).
To establish a foundation for admission of the breathalyzer test results, Director must demonstrate that section 577.020, RSMo (1994) was followed, in that the test was performed: (1) by following the approved methods and techniques of the Department of Health; (2) by persons holding a valid permit; and (3) on equipment and devices approved by the Department of Health. Rogers v. Director of Revenue, 947 S.W.2d 475, 477 (Mo.App.E.D. 1997).
Here, the trial court concluded that Director had failed to establish a foundation for admission of the BAC results because Director failed to show the Department of Health regulations were followed. We find no basis for this Conclusion. Director supposes that the court determined the test result was invalid because the arresting officer did not manually check off the boxes in the certification section of the Blood Alcohol Test Report. This report contains a section labeled "CERTIFICATION BY OPERATOR," which contains four sentences setting forth conditions with boxes to be checked by each sentence. The section requires the operator of the breathalyzer to certify: (1) "There was no deviation from the procedure approved by the department"; (2) "To the best of my knowledge the instrument was functioning properly"; (3) "I am authorized to operate the instrument"; and (4) "No radio transmission occurred inside the room where and when this was being conducted."
In Guccione v. Director of Revenue, 988 S.W.2d 649 (Mo.App.E.D. 1999), this court addressed this precise issue. There, we found the failure to check the boxes in the Blood Alcohol Test Report did not matter so long as the record established sufficient evidence of "substantive compliance" with the certification process. Id. at 654. In that case, certification by the operator in the Alcohol Influence Report of the exact four conditions was sufficient. Id.
The case at hand is identical to Guccione. Here, the Alcohol Influence Report also contains a section labeled "CERTIFICATION OF EXAMINATION BY OPERATOR", wherein the operator certifies the same four conditions. Trooper Anderson completed the required information, including his name and permit number. By completing this information, Trooper Anderson certified the four conditions were met. As in Guccione, this is sufficient evidence of compliance with the Department of Health regulations.
The evidence was uncontradicted and contains no discrepancies. In addition, as noted above, driver has failed to file a brief with this court presenting any other possible legal reasons for the trial court's judgment. While a respondent has no obligation to file a brief on appeal, when he fails to do so, he misses an opportunity to aid the court in arriving at a proper decision. See, Mochar Sales Co. v. Meyer, 373 S.W.2d 911, 913 (Mo. 1963). We find the trial court erred in entering judgment in favor of driver and ordering Director to reinstate his driving privileges. See, Reinert v. Director of Revenue, 894 S.W.2d 162, 164 (Mo.banc 1995).
Reversed and remanded for the trial court to enter a judgment reinstating the suspension of driver's driving privileges.
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