State v. Deimeke

17 Citing cases

  1. State v. Reichert

    854 S.W.2d 584 (Mo. Ct. App. 1993)   Cited 37 times
    Holding sanctions not warranted for State's failure to disclose photographs of defendant that were merely cumulative of witness testimony and other evidence

    See Stuhr v. Director of Revenue, 766 S.W.2d 446, 447 (Mo.banc 1989); Kenagy v. Director of Revenue, 719 S.W.2d 488, 489 (Mo.App. 1986); State v. Powers, 690 S.W.2d 859, 861 (Mo.App. 1985); State v. Adams, 689 S.W.2d 828, 829-30 (Mo.App. 1985); City of Cape Girardeau v. Geiser, 598 S.W.2d 151, 152 (Mo.App. 1979). In State v. Deimeke, 500 S.W.2d 257, 258 (Mo.App. 1973), a maintenance check was performed on December 1 which indicated the machine was functioning properly; the breath test was conducted on December 13, and a maintenance check was performed on January 2 which revealed that the machine was malfunctioning. In holding that the State failed to carry its burden of proving that the test was performed according to methods approved by the state Division of Health, the court said:

  2. State v. Palomino

    587 P.2d 107 (Or. Ct. App. 1978)   Cited 5 times
    Holding that when the legislative requirement is a calibration every 60 days, a defendant's test within 60 days after the last calibration will satisfy the necessary foundation and anything that occurs after the defendant's test, including demonstrated machine malfunction, will go only to the weight to be accorded the test

    The notation from the Instrument Test Record states that the red indicator light was not working and that the instrument was taken in for repair. Defendant's sole argument on appeal is that because the instrument was subsequently found to have a malfunction, the test results were inadmissible. Defendant cites State v. Deimeke, 500 S.W.2d 257 (Mo App 1973), in support of his argument. That case is factually similar to the case here at issue.

  3. State v. Dahlgren

    627 S.W.2d 53 (Mo. 1982)   Cited 1 times

    What followed was the approach of defendant's vehicle and the use of the radar gun as described earlier herein. Defendant contends that the malfunction could have affected the readings obtained on defendant's vehicle, as there was no showing by the state when the radar unit ceased to be functional. Defendant relies on State v. Deimeke, 500 S.W.2d 257 (Mo.App. 1973) in contending that the malfunction prevented the radar device from being sufficiently reliable and competent as to justify the admission of the results shown on it. We do not think that Deimeke is controlling here.

  4. Spradling v. Deimeke

    528 S.W.2d 759 (Mo. 1975)   Cited 102 times
    Holding that "refusal" for implied consent purposes means declining of one's own volition to take a breathalyzer test, which includes "verbally saying, ‘I refuse’ "

    Mr. Seigfreid testified he asked the trooper why the Miranda warnings were read to appellant that said he had a right to have counsel present, and the trooper replied that had nothing to do with it. Appellant again spoke with Mr. Seigfreid on the phone. Mr. Seigfreid said that in view of appellant's past experience with the breathalyzer test (see State v. Deimeke, 500 S.W.2d 257 (Mo.App. 1973)), he should not take the test unless either he (Seigfreid) or a local attorney was present. By this time about one hour had elapsed since appellant was arrested.

  5. Reckner v. Fischer

    121 S.W.3d 296 (Mo. Ct. App. 2003)   Cited 5 times
    In Reckner, the breath-testing unit began returning results of.004 when tested using a person with no alcohol in their system.

    r the implication that the machine was using an expired solution that would make it function improperly); Endsley v. Dir. of Revenue, 6 S.W.3d 153, 158, 164-65 (Mo. App. W.D. 1999) ( overruled on other grounds by Verdoorn, 2003 WL 22792243, at *4) (holding that the trial court correctly excluded test results where the maintenance report did not have a checkmark showing the simulator temperature was determined, evidence showed that if the temperature was outside the regulation range it would affect the BAC reading, and the trial court determined that the failure to check that portion of the report was not because the officer forgot to check it but because he did not perform that step of the maintenance check); State v. Young, 525 S.W.2d 440, 440-41 (Mo. App. 1975) (finding that test results were inadmissible when the air chamber of the breathalyzer machine is supposed to hold 52.5 milliliters of air and it contained 56.5 milliliters of air, which could result in a higher BAC reading). State v. Deimeke, 500 S.W.2d 257, 258-59 (Mo. App. 1973), is the only case Mr. Reckner relies on that is even close to this situation, but there are still important distinctions. In Deimeke a maintenance check was done on December 1, 1970, and the breathalyzer was working properly.

  6. State v. Huchting

    927 S.W.2d 411 (Mo. Ct. App. 1996)   Cited 26 times
    Holding that, without proof of indigence, a trial court will not be found to have committed error by refusing to grant funds for retaining an expert

    However, these cases involve statutorily-imposed evidentiary burdens. See State v. Deimeke, 500 S.W.2d 257, 258 (Mo. App. 1973) (holding that evidence from a breathalyzer test was inadmissible owing to failure of the state to show that it had conducted the test properly), State v. Young, 525 S.W.2d 440, 441 (Mo.App. 1975) (holding breathalyzer test results unreliable and hence inadmissible when the state's own evidence on the record showed the breathalyzer machine was non-functioning). We do not find that the trial court abused its discretion in admitting the testimony of Donna Becherer, a criminologist and experienced DNA identification analyst, to testify with regard to the nature and significance of the DNA test. Defendant had ample opportunity during cross-examination to discredit the manner in which the DNA tests were conducted. Point denied.

  7. Commonwealth v. Cochran

    517 N.E.2d 498 (Mass. App. Ct. 1988)   Cited 9 times

    Our view is consistent with that adopted by a majority of jurisdictions which have considered the question. See Moore v. State, 442 So.2d 164, 167 (Ala.Cr.App. 1983) (as a predicate for admitting test results, government must show that instrument used in conducting the test was in good working condition); State v. Rolison, 733 P.2d 326, 329 (Haw.Ct.App. 1987) (in order to have test result of intoxilyzer admitted in evidence, State must lay foundation showing instrument was in proper working order); State v. Geinzer, 406 N.W.2d 457, 458-459 (Iowa Ct.App. 1987) (blood alcohol test inadmissible when testing device registered reading of .01 during "air blank" step rather than .00); State v. Fairleigh, 490 So.2d 490, 497 (La.Ct.App. 1986) (State has obligation of showing that it has strictly complied with all officially promulgated procedures to insure integrity and reliability of chemical test result); State v. Deimeke, 500 S.W.2d 257, 259 (Mo.Ct.App. 1973) (where breathalyzer test was given to defendant between date when machine was found to be functioning properly and date when it was found to be malfunctioning, result is inadmissible); Moser v. North Dakota, 369 N.W.2d 650, 656 (N.D. 1985) (police officer's failure to start breathalyzer device at zero rendered breath sample inadmissible); State v. Hall, 39 Ohio App.2d 87, 89 (1973) (prerequisite for admitting blood alcohol results is showing that breathalyzer equipment was in proper working order). But see State v. Watkins, 104 N.M. 561, 564 (1986), and State v. Johnson, 717 S.W.2d 298, 305 (Tenn.Crim.App. 1986) (any inaccuracies in particular blood alcohol test go to weight, not to the admissibility of evidence).

  8. State v. Johnson

    728 S.W.2d 675 (Mo. Ct. App. 1987)   Cited 9 times
    Holding that an entrapment defense is generally riot available to an accused who denies selling narcotics "because the defense is premised on the basis that he did make the sale."

    Appellant complains that this evidence lacked foundation because there was no evidence that the device used for the infrared spectrophotometry test was checked. He cites us to State v. Deimeke, 500 S.W.2d 257 (Mo.App. 1973) and State v. Young, 525 S.W.2d 440 (Mo.App. 1975). In Deimeke evidence came in over a continuing objection that the test was conducted on a machine which was inaccurate and not functioning properly.

  9. State v. Adams

    689 S.W.2d 828 (Mo. Ct. App. 1985)   Cited 3 times

    He said that the breathalyzer machine operated normally and there was no indication of any malfunction. The checklist he prepared showed that the red light was functioning. Defendant relies primarily on State v. Deimeke, 500 S.W.2d 257 (Mo.App. 1973). There a defect in the breathalyzer machine was shown to be present twenty days after the test on the defendant.

  10. Jannett v. King

    687 S.W.2d 252 (Mo. Ct. App. 1985)   Cited 16 times

    State v. Powell, 618 S.W.2d 47 (Mo.App. 1981) [2]. In contrast see State v. Deimeke, 500 S.W.2d 257 (Mo.App. 1973) where the evidence showed malfunction after the test, placing the burden on the state to negate malfunctioning at the time of the test. The test results were properly admitted.