                IN THE MISSOURI COURT OF APPEALS
                         WESTERN DISTRICT
STATE OF MISSOURI,                               )
                                                 )
                  Respondent,                    )      WD77930
                                                 )
          v.                                     )      Opinion filed: November 10, 2015
                                                 )
CHRISTOPHER PICKERING,                           )
                                                 )
                  Appellant.                     )

        APPEAL FROM THE CIRCUIT COURT OF DAVIESS COUNTY, MISSOURI
                  THE HONORABLE DAREN L. ADKINS, JUDGE

                    Before Division Three: Joseph M. Ellis, Presiding Judge,
                         Gary D. Witt, Judge and Zel M. Fischer, Judge


          Christopher Pickering appeals from his conviction in the Circuit Court of Daviess

County of one count of the class B misdemeanor driving while intoxicated, § 577.010.1

Appellant was sentenced to a term of ten days in the county jail. For the following

reasons, the judgment of conviction and sentence is reversed, and the cause is

remanded for a new trial or other further proceedings consistent with this opinion.

          On the evening of November 24, 2013, the Missouri State Highway Patrol

received a report of a white GMC pickup truck driving in a careless and imprudent

manner in the northbound lane of I-35 near Cameron, Missouri. Shortly thereafter,

Trooper John Gilliland saw a vehicle matching that description driving north on I-35 in
1
    All statutory references are to RSMo 2000 as updated through the 2013 Cumulative Supplement.
Daviess County and began to follow it. Trooper Gilliland saw the vehicle move halfway

onto the outside shoulder of the road, return to the roadway, cross the line separating

the two northbound lanes, and travel for a significant distance while occupying both

lanes of traffic before returning to its original lane. The truck then abruptly turned onto

Exit 61 without utilizing a turn signal.    At that point, Trooper Gilliland activated his

emergency lights and initiated a traffic stop of the vehicle.

       Trooper Gilliland approached the truck and asked Appellant, the driver of the

truck, for his license and insurance card. After smelling alcohol while speaking with

Appellant, Trooper Gilliland asked Appellant to accompany him back to the patrol car.

Trooper Gilliland noticed that, as Appellant walked around the patrol car on the shoulder

of the road, he placed his hand on the patrol car to steady himself. Inside the patrol car,

Trooper Gilliland observed a moderate amount of alcohol on Appellant's breath and that

Appellant's eyes were glassy and bloodshot. He further noted that Appellant's speech

was thick and slurred at times. When Trooper Gilliland asked Appellant if he had been

drinking alcohol, Appellant responded that he had consumed two Bloody Marys at the

Chiefs game.

       Trooper Gilliland asked Appellant to submit to some field sobriety tests, and

Appellant complied. While administering the horizontal gaze nystagmus test, Trooper

Gilliland noted six out of six clues of intoxication. When asked to recite the alphabet

starting at B and ending in Q, Appellant started with the letter C and skipped the letter

P. When asked to count backward from 75 to 57, Appellant paused frequently and

recited the number 70 twice. When counting and reciting the alphabet, Appellant's




                                              2
speech was thick and slurred. Appellant then failed the one-leg-stand test and the

walk-and-turn test.2

        After performing the field sobriety tests, Trooper Gilliland arrested Appellant for

driving while intoxicated and took him to the Daviess County Sheriff's Department for a

breath test of his blood alcohol level. After being advised of the implied consent law,

and after being allowed to phone his attorney, Appellant agreed to submit to a breath

test, which was performed using a DataMaster machine. The breath test indicated that

Appellant's blood alcohol level was .136 percent.3 When further interviewed, Appellant

admitted to having operated his truck and to having consumed three Bloody Marys.

        On July 28, 2014, Appellant was tried by the court in the Circuit Court of Daviess

County and found guilty of one count of driving while intoxicated. The court sentenced

Appellant to a term of ten days in the county jail. Appellant brings two points on appeal.

        In his first point, Appellant claims that the trial court erred in admitting into

evidence the results of the DataMaster breath test of his blood alcohol level. He argues

that the State failed to establish a sufficient foundation for its admission because no

evidence was admitted into evidence establishing that the breath alcohol simulator used

for verification and calibration of the DataMaster device had been certified against a

National Institute of Standards and Technology traceable reference thermometer or

thermocouple between January 1, 2013, and December 31, 2013, as required by 19

C.S.R. 25-30.051(4). Appellant's second point, while couched as a sufficiency of the


2
  The horizontal gaze nystagmus test, one-leg-stand test, and the walk-and-turn test "are the only
scientifically validated and reliable field sobriety tests" recognized by the National Highway and Traffic
Safety Administration. State v. Browning, 458 S.W.3d 418, 424-25 (Mo. App. W.D. 2015) (Witt, J.,
concurring) (emphasis in original).
3
  This result was obtained from the second breath sample provided by Appellant after his first sample was
deemed invalid by the DataMaster machine. The print-outs reflecting the results of both tests were
admitted into evidence at trial.

                                                    3
evidence claim of error, is, in actuality, Appellant's argument that he suffered prejudice

as a result of the admission of the breath test results. He argues that it is clear that the

trial court relied on the breath test results in finding him guilty and that, with the breath

test evidence excluded, there is not enough evidence to support his conviction for

driving while intoxicated. Because these points together constitute one claim of error,

they will be addressed together.

         "The admissibility of evidence lies within the sound discretion of the trial court

and will not be disturbed absent abuse of discretion." State v. Ostdiek, 351 S.W.3d

758, 772 (Mo. App. W.D. 2011) (internal quotation omitted). "Such abuse occurs when

the trial court's ruling is clearly against the logic of the circumstances and is so

unreasonable and arbitrary that it shocks the sense of justice and indicates a lack of

careful, deliberate consideration." State v. Ross, 344 S.W.3d 790, 792 (Mo. App. W.D.

2011).

         "Provisions of Chapter 577 formalized the common law foundation for the

introduction of blood alcohol analysis evidence." Id. "Chapter 577 requires the 'state

department of health and senior services [to] approve satisfactory techniques, devices,

equipment, or methods to be considered valid pursuant to the provisions of sections

577.019 to 577.041 and [to] establish standards to ascertain the qualifications and

competence of individuals to conduct analyses and to issue permits which shall be

subject to termination or revocation.'"       Ostdiek, 351 S.W.3d at 772 (quoting §

577.020.4). "The chemical analysis of a person's blood alcohol content is admissible as

evidence and a blood alcohol content of 0.08% is prima facie evidence of intoxication

when the chemical analysis is 'performed as provided in sections 577.020 to 577.041



                                             4
and in accordance with methods and standards approved by the state department of

health and senior services.'" Ross, 344 S.W.3d at 792 (quoting § 577.037.1).

       "Before the breathalyzer test results can be admitted into evidence, the State

must demonstrate absolute and literal compliance with statutory provisions contained in

Chapter 577 regulating the manner in which blood alcohol tests are administered."

Ostdiek, 351 S.W.3d at 772 (internal quotation omitted). "Thus, in order to lay the

proper foundation for the admission of breathalyzer results pursuant to Chapter 577, the

State must demonstrate the test was performed: (1) by following the approved methods

and techniques of the Department of Health; (2) by a person holding a valid permit; and

(3) on equipment and devices approved by the Department of Health."4 Ross, 344

S.W.3d at 792 (internal quotation omitted).

       19 C.S.R. 25-30.051 provides:

         PURPOSE: This rule defines the standard simulator solutions or
         compressed ethanol-gas mixtures to be used in verifying and calibrating
         breath analyzers as well as the annual checks required on simulators
         used in conjunction with the standard simulator solution.

                                              *    *    *

         (4) Any breath alcohol simulator used in the verification or calibration of
         evidential breath analyzers with the standard simulator solutions referred
         to in sections (2) and (3) of this rule shall be certified against a National
         Institute of Standards and Technology (NIST) traceable reference
         thermometer or thermocouple between January 1, 2013, and December
         31, 2013, and annually thereafter."

       The State's evidence in the case at bar did not establish that this regulation had

been followed.      Both at the time of Appellant's arrest and on the date of trial, this

regulation required that the breath alcohol simulator used to verify and calibrate the


4
 "Breath analyzers shall be operated strictly in accordance with the procedures set forth in 19 CSR 25-
30.060." 19 CSR 25-30.011(5).

                                                  5
DataMaster had to be certified against an NIST thermometer or thermocouple in 2013,

and annually thereafter, if the standard simulator solutions listed in 19 C.S.R. 25-

30.051(2) were used to verify and calibrate the device. The DataMaster used to test

Appellant was in use in 2013. Appellant was tested with it on November 24, 2013.

Prior to its use on Appellant, the DataMaster was subjected to a monthly maintenance

check on November 11, 2013, with a breath alcohol simulator using one of the solutions

listed in 19 C.S.R. 25-30.051(2).     The plain language of 19 C.S.R. 25-30.051(4)

required the breath alcohol simulator to be certified against a NIST thermometer or

thermocouple sometime between January 1, 2013, and December 31, 2013, and

annually thereafter. At trial, the State presented no evidence that the breath alcohol

simulator was NIST certified in 2013. Absent evidence of such NIST certification, the

State failed to establish a sufficient evidentiary foundation to support the admission of

the breath test results. Carter v. Dir. of Revenue, 454 S.W.3d 444, 448 (Mo. App.

W.D. 2015).    Accordingly, the trial court erred in admitting those test results into

evidence.

      This Court, however, "reviews a trial court's decision to admit or exclude

evidence for prejudice, not mere error." State v. Oerly, 446 S.W.3d 304, 310 (Mo. App.

W.D. 2014). "[I]n a judge tried case, we presume that the trial judge was not prejudiced

by inadmissible evidence and was not influenced by it in reaching a judgment unless it

is clear from the record that the trial judge considered and relied upon the inadmissible

evidence." State v. Crews, 406 S.W.3d 91, 94-95 (Mo. App. W.D. 2013) (internal

quotation omitted).




                                           6
       In the case at bar, following closing arguments, the trial court stated:

        The Court does find there was probable cause for the stop, that the
        officer observed sufficient indicia of intoxication to support the arrest for
        driving while intoxicated. The Court finds there was a valid sample. It
        was admitted into evidence, a .136, which is sufficient to find the
        defendant guilty as charged of driving while intoxicated.

The trial court then asked if the parties wished for the court to go ahead and sentence

Appellant or for sentencing to be set for a later date. These statements clearly reflect

that the trial judge considered and relied upon the breath alcohol test results in

rendering its verdict. Accordingly, prejudice has been sufficiently established, and the

judgment must be reversed.

       Appellant argues that, with the breath alcohol test results excluded, insufficient

evidence was presented at trial to support his conviction and that this Court should

order him discharged rather than remanding the case for further proceedings.            The

record in this case, however, contains sufficient evidence, if found credible, for a trier of

fact to find that Appellant was driving while intoxicated even without a breath alcohol

test. For this reason, as explained infra, despite the insufficiency of the evidentiary

foundation for admission of the breath test results, the case must be remanded for a

new trial or other proceedings consistent with this opinion. State v. Major, 815 S.W.2d

499, 501 (Mo. App. E.D. 1991).

       "A person commits the crime of 'driving while intoxicated' if he operates a motor

vehicle in an intoxicated or drugged condition." § 577.010.1 (emphasis omitted). "[A]

person is in an 'intoxicated condition' when he is under the influence of alcohol, a

controlled substance, or drug, or any combination thereof." § 577.001.3 (emphasis

omitted). "A person is under the influence of alcohol when 'his use of alcohol impairs



                                             7
his ability to operate an automobile.'" State v. Seitz, 384 S.W.3d 384, 387 (Mo. App.

S.D. 2012) (quoting State v. Schroeder, 330 S.W.3d 468, 475 (Mo. banc 2011)). "Any

intoxication that in any manner impairs the ability of a person to operate an automobile

is sufficient to sustain a conviction of driving while intoxicated." State v. Adams, 163

S.W.3d 35, 37 (Mo. App. S.D. 2005).

       "The State is not required to establish an actual measure of a defendant's blood

alcohol content to prove the defendant was driving while intoxicated."                    Seitz, 384

S.W.3d at 387. "It is the fact, not the degree, of intoxication that is the significant issue

to consider."      State v. Edwards, 280 S.W.3d 184, 189 (Mo. App. E.D. 2009).

"Intoxication consists of three components: impaired ability, presence of a proscribed

substance in the defendant's body at the time of the offense, and a causal connection

between the proscribed substance and the defendant's impaired ability."                     State v.

Pilant, 437 S.W.3d 838, 839 (Mo. App. S.D. 2014) (internal quotation omitted).

       "Even in the absence of chemical tests establishing a defendant's BAC, the State

may meet its burden to show intoxication through testimony of an alleged offender's

physical manifestations of intoxication, such as bloodshot eyes and slurred speech, and

through a defendant's difficulty performing the field sobriety tests."5                     State v.

Gittemeier, 400 S.W.3d 838, 841 (Mo. App. E.D. 2013).                      "Whether a person is

intoxicated may be proven by any witness who had a reasonable opportunity to observe

the person's physical condition." Pilant, 437 S.W.3d at 839.




5
 Indeed, "[e]ven when a chemical analysis shows a defendant's blood alcohol content was less than .08
percent, the State may meet its burden to prove the defendant was driving while intoxicated if there is
substantial evidence of intoxication from physical observations of witnesses or admissions of the
defendant." Seitz, 384 S.W.3d at 387 (internal quotation omitted).

                                                  8
      In the case at bar, Trooper Gilliland testified that he observed Appellant driving

his car in an erratic and dangerous manner, demonstrating an inability to remain in his

lane of traffic and suddenly exiting the highway without signaling.        He noted that

Appellant's breath smelled moderately of alcohol, his eyes were bloodshot and glassy,

and his speech was thick and slurred. Appellant admitted having consumed alcohol.

When he was given the horizontal gaze nystagmus test, Appellant demonstrated six out

of six clues of intoxication. Appellant then proceeded to fail the one-leg-stand test and

the walk-and-turn test.   Trooper Gilliland testified that the field sobriety test results

indicated to him that Appellant was probably intoxicated. While the trial court could

certainly reach the contrary conclusion, the foregoing evidence would clearly be

sufficient to support Appellant's conviction. See Adams, 163 S.W.3d at 37 (sufficient

evidence to support the defendant's conviction for driving while intoxicated was held to

be present where, despite a breathalyzer test indicating that the defendant had a .061%

blood alcohol level, the arresting officer's testimony reflected that the defendant had

been involved in an automobile accident, had bloodshot and watery eyes, alcohol on his

breath, performed poorly on three field sobriety tests, and admitted having consumed a

beer); State v. Rose, 86 S.W.3d 90, 104 (Mo. App. W.D. 2002) (erroneous admission of

opinion testimony regarding HGN testing was harmless in a jury trial where other

evidence showed the defendant ran a red light, the officer noted that the defendant had

alcohol on his breath and glassy eyes, the defendant failed three field sobriety tests, the

defendant admitted having consumed two beers, and the defendant refused to take a

breath test); see also State v. Caines, 427 S.W.3d 305, 309 (Mo. App. E.D. 2014)

("Even in the absence of definitive blood alcohol content evidence, intoxication can be



                                            9
shown by the defendant's physical manifestations of intoxication, such as bloodshot

eyes and slurred speech, and through a defendant's difficulty performing the field

sobriety tests.") (internal quotation omitted).

       Indeed, Appellant makes no attempt to go through the evidence and argue that

no reasonable finder of fact could have found him to be intoxicated beyond a

reasonable doubt based upon the evidence other than breath alcohol test results.

Instead, Appellant argues that the trial court's statement at the end of trial reflects a

finding by the trial court that there was insufficient evidence to find the defendant guilty

beyond a reasonable doubt absent the breath alcohol test results. We simply cannot

read that much into the trial court's comments.            The trial court's finding that "the

arresting officer observed sufficient indicia of intoxication to support the arrest for driving

while intoxicated" does not equate to a finding that the evidence obtained prior to the

arrest was insufficient to establish the defendant's guilt beyond a reasonable doubt.

The trial court appears to have gone through a checklist of what was required for the

breath test to be properly admitted into evidence and then relied upon the breath test

results to find the defendant guilty. There is no clear indication from the comments that

the trial court ever considered whether the evidence sans the breath test results

sufficiently proved that Appellant was intoxicated.

       For the foregoing reasons, the trial court's judgment of conviction and sentence is

reversed, and the cause is remanded for a new trial or other further proceedings

consistent with this opinion.


                                                       ________________________________
                                                       Joseph M. Ellis, Judge
All concur.

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