FROM THE CIRCUIT COURT OF GREENE COUNTY Honorable Judge
Margaret Ellis Holden Palmietto
W. SHEFFIELD, P.J.
Hollis Roux ("Defendant") was charged with driving
while intoxicated and thereafter filed a motion to suppress
all the evidence in the case. The trial court granted that
motion, and the State appeals pursuant to §
547.200.1(3) raising two points of alleged error. In
its first point, the State argues the trial court's
decision was not supported by substantial evidence, and, in
its second point, the State argues the trial court erred in
refusing to admit the result of the portable breath test. The
State's second point has merit, so we are compelled to
reverse and remand the case. Moreover, as the admission of
the test result will add additional relevant evidence for the
trial court to consider on remand, we need not address the
State's first point.
and Procedural Background
our resolution of the issues in this case, we recite only
those facts necessary to understand the State's second
point. In the early morning hours of October 19, 2015, Greene
County Sheriff's Deputy Jason Flora ("Deputy
Flora") was on routine patrol when he encountered a 2013
Suzuki passenger car being driven without illuminated
taillights. Deputy Flora initiated a traffic stop and
discovered Defendant in the driver's seat of the vehicle.
After a short encounter, Deputy Flora asked Defendant to step
out of the vehicle and submit to a portable breath test. The
result was "a positive test for alcohol, greater than
.08." Deputy Flora arrested Defendant for driving while
being charged with driving while intoxicated, Defendant filed
a motion to suppress all the evidence in the case. At the
hearing on the motion to suppress, Defendant's attorney
objected to Deputy Flora's testimony about the portable
breath test, stating "[t]he statute clearly states
there's no number that's allowed to come in in regard
to a PBT." The prosecutor then made further argument,
noting the result of a portable breath test could be
considered for the limited purpose of showing "what
Deputy Flora knew when he made the decision to arrest
[Defendant]." After hearing rebuttal argument from
Defendant's attorney, the trial court reconsidered its
initial ruling and stated: "Okay. All right. I'm
going to allow-he can testify that it was a positive result,
but I'm not going to allow any numerical score or any
testimony as to a number[.]" Thereafter, Deputy Flora
reiterated his testimony that there was a positive result on
the portable breath test.
trial court granted the motion to suppress. In the docket
entry memorializing that order, the trial court stated,
"a positive PBT is also insufficient in the absence of
other evidence of impairment, to establish probable cause to
second point, the State argues "[t]he trial court erred
in refusing to admit the results of the portable breath
test" because those results were admissible under
Section 577.021. We agree.
a trial court's decision to exclude testimony is reviewed
for an abuse of discretion, granting substantial deference to
the trial court's decision." State v.
Eisenhour, 410 S.W.3d 771, 775 (Mo. App. S.D. 2013)
(quoting State v. Mort, 321 S.W.3d 471, 483 (Mo.
App. S.D. 2010)). "An abuse of discretion will be found
'where the 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
consideration.'" State v. Stottlemyre, 35
S.W.3d 854, 858 (Mo. App. W.D. 2001) (quoting State v.
Masden, 990 S.W.2d 190, 193 (Mo. App. W.D. 1999)). Where
the trial court misapplies the law resulting in the exclusion
of evidence, appellate courts will find an abuse of
discretion. See State v. Gonzales, 153 S.W.3d 311,
314-15 (Mo. banc 2005).
true the admissibility of the result of a portable breath
test is "narrowly restricted by statute." State
v. Morgenroth, 227 S.W.3d 517, 521 (Mo. App. S.D. 2007).
The statute permits specified law enforcement officers to
administer pre-arrest chemical tests of a suspect's blood
alcohol content under certain circumstances. § 577.021.1.
Moreover, "[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." §
577.021.3. That is, the result of a portable breath test
is admissible to show an officer had probable cause
to arrest. See, e.g., Morgenroth, 227
S.W.3d at 522 (quoting § 577.021.3).
while Deputy Flora initially testified the result was greater
than .08 and that testimony was not stricken, it is clear
that after Defendant's objection the trial court did not
consider the actual, numerical result. After the objection,
Deputy Flora was merely permitted to state that there was a
"positive" result. However, standing alone, the
evidence of a "positive" result is ambiguous. That
is because the actual numerical value of the test is what
makes the result of the portable breath test relevant to the
issue of probable cause. A reasonable officer, when faced
with a portable breath test result of .08 percent or more
would be justified in believing the driver was impaired so as
to support a finding of probable cause. See §
577.037.2 ("If a chemical analysis of the
defendant's breath, blood, saliva, or urine demonstrates
there was eight-hundredths of one percent or more by weight
of alcohol in the person's blood, this shall be prima
facie evidence that the person was intoxicated at the time
the specimen was taken."); State v. Mattix, 482
S.W.3d 870, 875 (Mo. App. E.D. 2016). In contrast, the result
of the test might be "positive" for alcohol but
show a blood alcohol content of less than .08 percent. Under
such circumstances, an inference of intoxication might not be
justified. Since the trial court noted the
"positive" result but nevertheless found there was
no probable cause, it is clear the trial court either
referred to a "positive" result in this latter
sense or completely excluded it from consideration.
Consequently, its ruling on the admissibility of the result
of the portable breath test prevented the State from
presenting admissible evidence supporting its burden to prove
that Deputy Flora had probable cause to make the arrest.
the State sought to introduce the evidence of the result of a
portable breath test in a hearing on a motion to suppress at
which the only issue was whether the officer had probable
cause to arrest Defendant. That was a permissible use of the
evidence under the statute. See § 577.021.3.
Thus, the trial court should have admitted the actual,
numerical result of the portable breath test, and its failure
to do so was an abuse of discretion. The State's second
point is granted. As this ...