Section 62 First-Line Defenses: Statutes, Regulations, Methods, and Techniques of Missouri Department of Health and Senior Services

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Defense counsel may be able to show that there was a failure to follow the methods and techniques outlined by the MoDHSS (Missouri Department of Health and Senior Services) Breath Alcohol Operator Manual, Type III Operator Manual (2013) (Type III Manual), available at:

http://health.mo.gov/lab/breathalcohol/pdf/TypeIII

OperatorManual.pdf

Section 577.020, RSMo Supp. 2012, and § 577.026, RSMo 2000, deal specifically with this issue. Also, Missouri caselaw supports this defense. The defense can be asserted by attacking the foundation.

When a driver objects to the results of a BAC (blood alcohol content) test being admitted as evidence, the prosecution must show that the following “foundational prerequisites for admission of test results” were met:

“1) the test was performed by following approved techniques and methods of the Division of Health,

2) the operator held a valid permit, and

3) the equipment and devices were approved by the Division.”

Sellenriek v. Dir. of Revenue, 826 S.W.2d 338, 340–41 (Mo. banc 1992). If submission of the BAC results is not challenged, this showing is not required. See also Jannett v. King, 687 S.W.2d 252 (Mo. App. E.D. 1985).

Note: The word “regulation” is not used in the caselaw or in §§ 577.020 and 577.026. How to perform the breath test correctly is not in the...