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Dillon v. Director of Revenue9/7/1999
reathalyzer test results in Young were, in fact, admissible, and thus established the Director's prima facie case. Id. The same result was reached under similar facts in Bautista v. Director of Revenue, 843 S.W.2d 1, 3 (Mo. App. 1992) (holding that deficiencies in form used by Kansas City Missouri Police Department were overcome by officer's testimony of compliance with Department of Health regulations).
At a trial de novo, the Director may satisfy the burden of showing compliance with the Department of Health regulations through all available evidence. Brussel v. Director of Revenue, 962 S.W.2d 454, 456-57 (Mo. App. 1998). The regulatory requirements are a substitute method of establishing a common law foundation for the admission of evidence. Tomkins v. McNeil, Director of Revenue, 782 S.W.2d 400, 402 (Mo. App. 1989). When the substitute method fails, the Director may still rely upon the common law and establish a foundation by any probative evidence. See id.; Brussel, 962 S.W.2d at 456-57. "A court that favors the form or content of the official reports over witness testimony on the trial de novo so as to preclude evidence from the arresting officer . . . invites error." Young, 835 S.W.2d at 335.
Here, the Director offered Officer Pendleton's testimony and the Department of Revenue form as foundational evidence indicating that the operational checklist requirements of the Department of Health were met. Although this evidence is not in the form prescribed by the Department of Health regulations, when evidence other than the Department of Health form proves substantive compliance with the regulations' requirements, any deviation in the form used to report the compliance is not fatal to the suspension of the driver's license. Id. To require technical compliance with the regulation would defeat the purpose of the drunk driving statute. Id.; Shine v. Director of Revenue, 807 S.W.2d 160, 163 (Mo. App. 1991); Tomkins, 782 S.W.2d at 402. The breathalyzer machine operational checklist form Officer Pendleton used contained every testing procedure listed on the Department of Health breathalyzer machine operational checklist. The Director established that the Department of Health regulations were substantively followed. Therefore, the breathalyzer test results were admissible evidence which established the second prong of the Director's prima facie case, and the trial court erred in finding to the contrary.
Because this court finds that the Director made a prima facie case for suspension of Mr. Dillon's driving privileges, the judgment of the trial court is reversed and the cause is remanded for a new trial.
All concur.
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