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Endsley v. Director of Revenue9/21/1999
n to the driver to rebut the prima facie case by showing that the test result was not reliable, and if he fails to do so, then the test result was admissible. In determining whether the breath test result should be admitted to allow the Director to make a prima facie case, the issue is whether the Director has carried his burden as to its admissibility. Thus, to the extent Hurley can be read as shifting the burden to the driver to rebut the admissibility of the BAC test result, we cannot logically follow it. Furthermore, we do not believe that the decision in Hurley controls here in any event because ultimately it rested on the appellate court's finding that the inconsistencies alleged did not affect the reliability of the maintenance report, Hurley, 982 S.W.2d at 697, and we believe, as discussed, infra, that there was evidence here from which the trial court here could have found that the test result was unreliable.
The Dissent also cites and relies heavily on Anderson v. Director of Revenue, 969 S.W.2d 899, 901 (Mo. App. 1998). Anderson, like Hurley, misses the mark in that it confuses the Director's burden in making a prima facie case for suspension and the resulting burden shifting with the Director's burden to establish the admissibility of the BAC test result in order to make a prima facie case for suspension. In Anderson, the Director appealed from the trial court's order reinstating the driver's license. Id. at 900. At issue was whether the proper foundation had been laid to admit the breathalyzer test result, specifically, whether the required 35-day maintenance check had been done as required. Id. at 902. The driver challenged the maintenance check on the basis that the Type II permit number reflected on the report was not the permit number of the officer who actually did the check, calling into question in his view the accuracy of the maintenance check. The case was submitted to the trial court on the record only. Id. at 901. The Anderson court, rather than deciding the case on the issue of whether the discrepancy in the maintenance report complained of was sufficient for the trial court to conclude that the accuracy of the breathalyzer test was affected such that a proper foundation was not laid by the Director for the breath test's admission, jumped this step and found that a prima facie case had been made, which assumes the admissibility of the test result, and held that it was up to the driver to "rebut" the prima facie case with evidence of the breathalyzer machine's malfunction. Id. at 903. This is the same circular logic used in Hurley and impermissibly shifts the burden to the driver to establish the "admissibility" of the test result, which the Director seeks to introduce to make a prima facie case. This is and should not be the law. Further compounding the problems with the Anderson decision is the fact, that unlike here, the case was submitted on the record only. In any event, the Anderson court left unanswered the question of whether the discrepancy in the report rendered the test result inadmissible for a lack of foundation such that the Director failed to make a prima facie case, which then and only then would have shifted the burden to the driver to show that the machine malfunctioned and, in our view, adds nothing to our Discussion of the case at bar.
In the instant case, Officer Bridgeforth, a Type II permit holder, testified that if the simulator temperature was not checked and found to be within the allowed range, 34 degrees C +/- 0.2 degrees C, the test result would be skewed, one way or the other. Thus, on the face of the circumstances presented, there can be no argument that a BAC test result is rendered, per se, unreliable unless a check was performed to ascertain th
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