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Duncan v. State9/19/2000
defendant was intoxicated. See Mo. Code Regs. title 19, sections 25-30.011 - 25-30.060. Its use is strictly limited by statute. Section 577.021 RSMo (1994), in relevant part, states:
A member of the state highway patrol may, prior to arrest, administer a chemical test to any person suspected of operating a motor vehicle in violation of section 577.010 or 577.012. A test administered pursuant to this section shall be admissible as evidence of probable cause to arrest and as exculpatory evidence, but shall not be admissible as evidence of blood alcohol content.
This statute authorizes a highway patrol officer to administer a pre-arrest chemical test to any individual suspected of driving while intoxicated. The state may use the results of the test to show probable cause to arrest and the defendant may use those results as exculpatory evidence. But the legislature has clearly forbidden the use of the PBT to prove intoxication. Section 577.021 thus represents a legislative conclusion that the portable breath test is too unreliable to be used to prove intoxication.
As the state concedes, the trial court abused its discretion by improperly admitting the portable breath test. The only issue on appeal is whether there was prejudice. This requires us to determine if, in the absence of the improperly admitted evidence, there is a reasonable probability that the verdict would have been different. Danikas, 11 S.W.2d at 792. A number of factors are relevant in analyzing this, including: (1) the presence or absence of an objection by trial counsel; (2) the request or lack thereof for a cautionary instruction; (3) whether the reference was inadvertent or purposefully used to bolster and rehabilitate the witness's credibility; (4) whether the witness's credibility played a vital role in the case; and (5) whether the testimony was emphasized and stressed during the trial or was merely an isolated incident. See People v Whitfield, 228 NW2d 475, 477-78 (Mich.App. 1975). Applying these factors to this case, we find that prejudice occurred.
First, defense counsel objected to the introduction of the PBT both at pre-trial conference and at trial. Second, the court admitted the PBT without giving a limiting instruction to the jury that this evidence was not to be considered in determining Duncan's guilt. Third, it is clear that Sargent's subjective impressions of Duncan were bolstered by the PBT. Fourth, Sargent was the state's only witness. Any credibility he gained because the PBT corroborated his subjective evaluation would certainly have influenced the jury's determination. Fifth, while the test was not the only evidence the state put forward, it was emphasized both at the evidentiary phase and in closing argument.
During the state's case, and over defense counsel's continuing objection, the state adduced the following testimony from trooper Sargent:
Q. Did you give a portable breath test?
A. Yes, sir, I did.
Q. And can you describe what the portable breath test is?
A. This is a portable breath tester. It's called NESTE-II. And to perform it, you have a clear, plastic tube that's about this long for the subject to blow into. You test it first to make sure it zeros out at zero so it's a fair test. And then you press this button. The subject blows into it. When these two lights light up that means you have a correct air sample in this chamber. As soon as they light up the subject can quit blowing. You press the button that says "read" and it gives you a readout.
Q. Did you give this test to Ronald Duncan?
A. Yes, sir, I did.
Q. Did the red and green light come on?
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