A jury found defendant Donald Roy Paul guilty of driving a motor vehicle while in an intoxicated condition, and imposed a $500 fine. (Under § 564.440(1)
The decisive issue concerns admissibility of a chemical analysis of defendant's breath made after testing with a Double Piston Cylinder (DPC) intoximeter. The defendant objected to this because he had requested but had been denied full information concerning the test, to which he was entitled under § 564.441, subdivision 4.
A simpler issue is defendant's challenge to sufficiency of the evidence. We recite it without reference to the intoximeter test. On the night of January 20-21, 1968, defendant spent several hours at a social hall, drinking (he said) three glasses of beer. About 2 a. m. he left the hall, driving his car on Gravois avenue. He rear-ended Thomas Parchomski's car which was stopped at an intersection traffic signal. Someone called the police and soon Patrolman Virgil Seib arrived. The two men described the defendant's gait, eyes and breath odor. Each then gave his opinion, without objection, that defendant was intoxicated. The evidence was sufficient. Compare State v. Ryan, Mo., 275 S.W .2d 350; and State v. Hatcher, 303 Mo. 13, 259 S.W. 467 [1, 9].
Before relating evidence of the DPC intoximeter test, we point out the pertinent statutory provisions. By § 564.440 it is a crime to operate a motor vehicle while intoxicated. By § 564.442 the amount of alcohol in a defendant's blood, as shown by chemical analysis of his breath, is admissible in evidence; a percentage of alcohol in excess of 0.15 is prima facie evidence of intoxication. Our primary concern is § 564.441. Subdivision 1 declares a driver's "implied consent" to a chemical test. Subdivision 2, with our emphasis added, provides: "Chemical analysis of the person's breath, to be considered valid * * * shall be performed according to methods approved by the state division of health * * *." The division is authorized fto approve methods and issue permits to qualified persons to conduct analyses. By Subdivision 3 a person so tested is authorized to have an additional test made by a physician, or other qualified person, of his own choice. Defendant rests his appeal on Subdivision 4: "Upon the request of the person who submits to a chemical test at the request of a law enforcement officer, full information concerning the test shall be made available to him."
The intoximeter test evidence: When Patrolman Seib met the defendant at the collision site he explained the implied consent law and defendant agreed to the test. The officer drove defendant to a hospital for a physical examination to determine injury. About three hours after the collision defendant and Patrolman Seib arrived at police headquarters. There Corporal James Brady, a state-licensed "type three operator", gave defendant the DPC intoximeter test by having him blow through the machine into a chemically treated glass tube. The color of this sample indicated to Corporal Brady that defendant was intoxicated to some degree. Thereupon a second sample was taken, put into a "magnesium perchlorate tube", sealed, marked and stored. Three days later this tube was turned over to Mr. Robert Seto, the police department's chemist. Mr. Seto was a state-licensed "type one operator" authorized to make quantitative analyses of blood alcohol as shown by breath sampled with a DPC intoximeter.
This prosecution moved speedily. On January 23, 1968, Mr. Sidney Faber, associate prosecuting attorney for the City of
At trial, chemist Seto told how a DPC intoximeter works. With a DPC intoximeter and its tubes (not the ones used here) he demonstrated the procedure in taking breath samples. Mr. Seto testified he "ran an analysis" on the defendant's breath sample. Asked the "number reading" on the test, he answered—over defendant's objection hereafter discussed—that it "showed a blood alcohol concentration of 0.24 percent * * * the subject was undoubtedly intoxicated."
The defendant objected to the admission of results of the chemical analysis on the ground he had requested but the police had denied him full information concerning the test—in violation of § 564.441, subdivision 4. If this objection was valid, the answer ("showed a blood alcohol concentration of 0.24 percent * * * the subject was undoubtedly intoxicated") was prejudicial. State v. Burchett, Mo., 302 S.W.2d 9.
As said, the decisive issue here is whether the State's failure to comply with subdivision 4 of § 564.441 barred the State from introducing evidence of the chemical analysis. We say it did.
This conclusion is based on our construction of § 564.441. Each of three approaches leads to that result. First, subdivision 4 is mandatory rather than directory and, hence, failure to comply with it nullifies compliance with other provisions of § 564.-441. Second, this follows our further conclusion that § 564.441 establishes a statutory substitute for the necessary common-law foundation for showing results of mechanical tests. Third, subdivision 4 favors the defendant, must be construed favorably to him, and must be harmonized with the other provisions of § 564.441.
Mandatory Nature. The mandatory or directory nature of a statute is determined from the legislative intent. This depends primarily on the purpose of the enactment.
A further factor should be considered: the effect of a different construction.
And looking to the words used by the Legislature, we note that test information shall be made available to an accused. The word "may" is permissive only, but the word "shall" is mandatory.
We hold that subdivision 4 is mandatory. Failure to follow a mandatory statute nullifies the proceeding to which it relates.
Statutory Foundation. But for § 564.441, results of chemical analyses would be admissible only after laying a foundation to show that the results are reliable. For example, to introduce the results of radar speed tests or X-ray photographs it must be shown that the device was trustworthy at the time used and that it was operated by a qualified person.
Other state courts require this commonlaw foundation before admitting evidence of mechanical test results to show the quantity of alcohol in blood. Though requirements vary, they are but different measures used to meet the requirement that the results "can be relied on as a substantive fact."
We have recited the elements of these common-law foundation requirements because § 564.441 authorizes a statutory substitute. Subdivision 2 states that chemical analysis of the person's breath to be considered valid shall be performed according to methods approved by the state division of health, which is authorized to prescribe satisfactory techniques or methods. But in our case there was no evidence of what methods of testing had been prescribed by the department of health and, therefore, no way to determine whether the testing procedure used did meet those standards. We note that in New York where the statute says mechanical tests for blood alcohol shall be given in accordance with regulations established by the police department, there can be no conviction without evidence of what those standards were and that the test was conducted accordingly.
Statute Construed as a Whole. We now reach the decisive question: Were the test results inadmissible because the State had violated subdivision 4 of § 564.441 by failing to disclose those results to the defendant? Subdivision 4 does not
Guided by these principles we conclude that § 564.441 was adopted to establish a fixed standard for procuring admissible evidence of blood alcohol for use against persons operating automobiles while intoxicated.
Our Legislature is not blind to the trend away from "the sporting theory of justice" and "trial by ambush", and toward trials conducted as openhanded searches for truth. We conclude that compliance with subdivision 4 of § 564.441 was meant to be a condition precedent for admission of evidence procured under subdivisions 1 and 2 thereof. That condition having been violated by the State, it was error to admit the State's evidence of chemical analysis. The judgment is reversed and the cause remanded.
The foregoing opinion of Clemens, C, is adopted as the opinion of this court. Accordingly, the judgment is reversed and the cause remanded.
ANDERSON, P. J., and RUDDY and WOLFE, JJ., concur.