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Chemical testing--admissibility--termination , section: 577.021

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Substantive DUI/Excess Alcohol Offense, Portable Breath Tests (PBTs) in a Missouri DUI / DWI / BAC or other drunk driving case

Any state, county or municipal law enforcement officer who has the power of arrest for violations of section 577.010 or 577.012 and who is certified pursuant to chapter 590, RSMo, 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. The provisions of section 577.020 shall not apply to a test administered prior to arrest pursuant to this section.

Comments : Portable Breath Tests (PBTs); Missouri PBT Law

As discussed in §14.12 above, Phase III, Pre-Arrest Screening, “has two major evidence gathering tasks,” 2002 NHTSA Student Manual, VII-1, which form the basis of the officer’s decision to arrest. The second evidence-gathering task is for the officer to perform a portable breath test (PBT) when allowed by state law.

It is important to note that NHTSA protocol lists standardized field sobriety testing as the first evidence-gathering task of Phase III and performing a PBT on the subject as the second. Id. NHTSA instructs the officer that a PBT “can help to corroborate all other evidence and to confirm your judgment as to whether the suspect is impaired.” Id. at VII-2 (emphasis added). Implicit in this instruction is the notion that an officer may not begin an investigation “fishing” with a PBT without first following NHTSA protocol regarding Phases I and II, when applicable, and the standardized field sobriety testing of Phase III before administering the PBT on the subject. NHTSA further provides that “[t]he PBT result is only one of many factors the officer considers in determining whether the suspect should be arrested for DWI. It should never be the sole basis for a DWI arrest.” Id. at VII‑7. In short, a PBT is properly used when the officer seeks to corroborate his or her initial observations of the subject, but it is not a proper substitute for the other factors that are to be used in making an arrest decision—it is only one of several factors to be employed.

When an officer attempts to perform a PBT on a subject moments after the stop is made, before conducting Phases I and II, when applicable, and before administering the SFST battery under Phase III, or when an officer uses a PBT as the sole basis of arresting a subject for DWI, counsel should seek suppression for lack of probable cause.

In Missouri, a blood alcohol test administered with a PBT is not a “test” within the meaning of implied consent statute, § 577.020, RSMo Supp. 2003. Justice v. Dir. of Revenue, 890 S.W.2d 728 (Mo. App. W.D. 1995). A PBT is admissible as evidence of probable cause to arrest in Missouri , but it is not admissible as evidence of the subject’s blood alcohol content. Section 577.021, RSMo Supp. 2003, provides:

Any state, county or municipal law enforcement officer who has the power of arrest for violations of section 577.010 or 577.012 and who is certified pursuant to chapter 590, RSMo, 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. The provisions of section 577.020 shall not apply to a test administered prior to arrest pursuant to this section.

See State v. Duncan, 27 S.W.3d 486, 488 (Mo. App. E.D. 2000) (allowing the results of PBT into evidence was reversible error in prosecution for DWI when officer testified that subject “failed” the PBT test; § 577.021 “represents a legislative conclusion that the portable breath test is too unreliable to be used to prove intoxication.”). See also :

State v. Stottlemyre, 35 S.W.3d 854 (Mo. App. W.D. 2001) (foundation does not need to be established to admit PBT “results”); State v. Hanway, 973 S.W.2d 892 (Mo. App. W.D. 1998) (trial court erred in permitting municipal police officer to testify that he had given defendant a breath test and had arrested him based on breath test and other field sobriety tests given; statute governing breath tests only authorized highway patrol officers to perform test, not municipal or county police officers); State v. Buckler, 988 S.W.2d 565 (Mo. App. W.D. 1999) (PBT relied on to establish intoxication).

Because § 577.021 provides that a PBT may not be used as “evidence of blood alcohol content,” defense counsel should be creative and seek suppression of officer testimony that the suspect tested positive for alcohol or that the presence of alcohol was detected on the subject’s breath. See State v. Deshaw, 404 N.W.2d 156 ( Iowa 1987) (cited by the Missouri Court of Appeals in Duncan , 27 S.W.3d 486):

The unreliability inherent in the [PBT] test goes to both aspects of the test; not only may the test register an inaccurate numerical percentage of alcohol present in the breath, it may also be inaccurate as to the presence or absence of any alcohol at all. In this case, the unreliable evidence of the presence of alcohol was introduced to show defendant had been drinking. We fail to find any suggestion in the statute that the term “result” should be restricted to render inadmissible only the numerical percentage of alcohol present. Consequently, we conclude that the showing of positive on the test,

indicating the presence of some alcohol, is a “result” of the testing which may not be used as evidence in court.

Deshaw, 404 N.W.2d at 158.



J. Matthew Guilfoil, The Guilfoil Law Group, L.L.C. 1656 Washington, Suite 220 Kansas City, Missouri 64108 (816) 842-3717 phone, 1-877-DWI-MATT Toll Free Number; Email: info@guilfoillawgroup.com.

Practice in the following Regions, Cities, and Counties in Missouri.


Cass County. Archie, Austin, Belton, Cleveland, East Lynne, Freeman, Garden City, Harrisonville, Lake Annette, Latour, Peculiar, Pleasant Hill, Raymore, Strasburg, West Line, 64012, 64078, 64080, 64083, 64090, 64701, 64725, 64734, 64743, 64746, 64747.

Clay County. Avondale, Birmingham, Claycomo, Crystal Lakes, Excelsior Estates, Excelsior Springs, Gladstone, Holt, Homestead Village, Kansas City, Kearney, Liberty, Mosby, North Kansas City, Pleasant Valley, Randolph, Smithville, Wood Heights. 64024, 64048, 64060, 64068, 64069, 64072, 64073, 64089, 64116, 64117, 64118, 64119, 64155, 64156, 64157, 64158, 64160, 64161, 64165, 64166, 64167.

Jackson County. Blues Springs, Buckner, Grain Valley, Grandview, Greenwood, Independence, Kansas City, Lake Lotawana, Lake Tapawingo, Lake Winnebago, Lee's Summit, Levasy, Lone Jack, Oak Grove, Raytown, Sibley, Sugar Creek. 64013, 64014, 64015, 64016, 64029, 64030, 64034, 64050, 64051, 64052, 64053, 64054, 64055, 64056, 64057, 64058, 64063, 64064, 64066, 64070, 64075, 64081, 64082, 64086, 64088, 64101, 64102, 64103, 64105, 64106, 64108, 64109, 64110, 64111, 64112, 64113, 64114, 64120, 64121, 64123, 64124, 64125, 64126, 64127, 64128, 64129, 64130, 64131, 64132, 64133, 64134, 64136, 64137, 64138, 64139, 64141, 64142, 64145, 64146, 64157, 64148, 64149, 64179, 64188, 64191, 64192, 64196, 64199, 64171, 64172.

Platte County. Camden Point, Dearborn, Farley, Edgerton, Ferrelview, Houston Lake, Kansas City, Lake Waukomis, Parkville, Platte City, Platte Woods, Riverside, Waldron, Weatherby Lake, Weston. 64018, 64028, 64079, 64092, 64098, 64108, 64150, 64151, 64152, 64153, 64154, 64163, 64164, 64168, 64190, 64195, 64439, 64444.

Ray County. Camden, Hardin, Henrietta, Elmira, Lawson, Orrick, Rayville, Richmond. 64017, 64035, 64036, 64062, 64077, 64084, 64085.

Other Areas of Service in Missouri

Andrew County. Rea, Rosendale, Savannah. 64480, 64483, 64485.

Bates County. Adrian, Amoret, Amsterdam, Butler, Drexel, Foster, Hume, Stotesbury, Passaic, Rich Hill, Rockville. 64720, 64722, 64723, 64730, 64742, 64745, 64752, 64777, 64779, 64780.

Boone County. Ashland, Centralia, Columbia, Hallsville, Harrisburg, Hartsburg, McBaine, Rocheport, Sturgeon. 65010, 65039, 65201, 65202, 65203, 65205, 65240, 65255, 65256, 65279, 65284.

Buchanan County. Agency, De Kalb, Easton, Faucett, Rushville, St. Joseph. 64400, 64401, 64443, 64448, 64484, 64501, 64502, 64503, 64504, 64505, 64506, 64507, 64508.

Caldwell County. Braymer, Breckenridge, Cowgill, Hamilton, Kidder, Kingston. 64624, 64625, 64637, 64644, 64649, 64650.

Carroll County. Bogard, Bosworth, Carrollton, De Witt, Hale, Norborne, Stet, Tina, Wakenda. 64622, 64623, 64633, 64639, 64643, 64668, 64680, 64682, 64687.

Chariton County. Mendon, Rothville, Sumner. 64660, 64676, 64681.

Clinton County. Cameron, Gower, Lathrop, Plattsburg, Trimble, Turney. 64429, 64454, 64465, 64477, 64492, 64493.

Cooper County. Blackwater, Boonville, Bunceton, Otterville, Pilot Grove, Prairie Home, Wooldridge. 65068, 65233, 65237.

Daviess County. Altamount, Coffey, Gallatin, Jameson, Jamesport, Lock Springs, Pattonsburg, Winston. 64620, 64636, 64640, 64647, 64648, 64654, 64670, 64689.

De Kalb County. Amity, Clarksdale, Fairport, Hemple, Maysville, Osborn, Stewartsville, Union Star, Weatherby. 64422, 64430, 64447, 64469, 64474, 64490, 64494, 64497.

Gentry County. Albany, Darlington, Gentry, King City, McFall, Stanberry. 64402, 64438, 64453, 64463, 64489, 64657.

Grundy County. Galt, Laredo, Spickard, Trenton. 64641, 64652, 64679, 64683.

Harrison County. Bethany, Blythedale, Brimson, Cainsville, Eagleville, Gilman City, Hatfield, Martinsville, Mount Moriah, New Hampton, Ridgeway. 64424, 64426, 64442, 64458, 64467, 64471, 64481, 64632, 64642.

Henry County. Blairstown, Calhoun, Clinton, Creighton, Deepwater, Montrose, Tightwad, Urich, Windsor. 64726, 64735, 64739, 64740, 64770, 64788, 65323, 65360.

Holt County. Bigelow, Corning, Craig, Fortescue. 64437.

Howard County. Armstrong, Fayette, Franklin, Glasgow, New Franklin. 65230, 65248, 65250, 65254, 65274.

Johnson County. Centerview, Holden, Warrensburg, Chilhowee, Kingsville, Leeton, Whiteman Air Force Base, Knob Noster. 64019, 64040, 64061, 64093, 64733, 64761, 65305, 65336.

Lafayette County. Alma, Bates City, Concordia, Corder, Dover, Higginsville, Lexington, Mayview, Napoleon, Odessa, Waverly, Wellington. 64001, 64011, 64020, 64021, 64022, 64037, 64067, 64071, 64074, 64076, 64096, 64097.

Linn County. Brookfield, Browning, Buckin, Laclede, Linneus, Marceline, Meadville, New Boston, Purdin, St. Catherine. 63557, 64628, 64630, 64631, 64653, 64658, 64659, 64674.

Livingston County. Avalon, Chillicothe, Chula, Dawn, Ludlow, Mooresville, Utica, Wheeling. 64601, 64635, 64638, 64656, 64664, 64686, 64688. Macon County. Anabel, Atlanta, Bevier, Callao, Elmer, Ethel, Excello, La Plata, Macon, New Cambria. 63431, 63530, 63532, 63534, 63538, 63539, 63549, 63552, 63558, 65247.

Mercer County. Mercer, Princeton. 64661, 64673.

Pettis County. Green Ridge, Houstonia, Hughesville, La Monte, Mora, Sedalia, Smithton. 65301, 65302, 65332, 65333, 65334, 65337, 65345, 65350.

Putnam County. Livonia, Lucerne, Powersville, Unionville, Worthington. 63551, 63565, 63567, 64655, 64672.

Saline County. Arrow Rock, Blackburn, Gilliam, Grand Pass, Malta Bend, Marshall, Napton, Miami, Nelson, Slater, Sweet Springs. 65320, 65321, 65330, 65339, 65340, 65344, 65347, 65349, 65351.

Sullivan County. Green Castle, Green City, Harris, Humphreys, Milan, Newton, Pollock, Winigan. 63544, 63545, 63556, 63560, 63566, 64645, 64646, 64667.

Worth County. Allendale, Denver, Grant City, Sheridan, Worth.



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http://www.guilfoillawgroup.com (Missouri Affiliate).

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