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Zempel v. Slater12/6/2005
estimony about the effect of the alcohol on the defendant is required for this type of evidence to be admissible. In Stewart there was no such evidence, and, in fact, requiring evidence of the effect the alcohol had on the person would be similar to the requirement for admissibility that Rodriguez did away with: " reviously, in a negligence action, evidence of a driver's alcohol consumption was admissible only if coupled with evidence of erratic driving or some other circumstance from which it might be inferred that the driver's physical condition was impaired at the time of the accident." 936 S.W.2d at 106 (emphasis added). The absence of that evidence and any further details about the time of consumption go to the weight of the officer's testimony, not to its admissibility.
At oral argument, Slater's counsel insisted that this case was analogous to Hosto v. Union Electric, where this Court affirmed the trial court's decision to exclude evidence of alcohol consumption. 51 S.W.3d 133, 143-44 (Mo. App. E.D. 2001). In that case, a helicopter crashed into power lines, killing the pilot and his passenger. Id. at 136. The decedents' families sued the power company. Id. at 137. The trial court refused to submit an instruction alleging the passenger's comparative fault for getting in the helicopter with the pilot whose blood alcohol content was .114 and also refused to admit evidence that the passenger's blood alcohol content was .08. Id. at 143. On appeal, the power company argued that this evidence was relevant and created an inference that the passenger and the pilot were drinking together all day, which showed her knowledge of his impaired condition and supported the comparative fault instruction. Id. This Court found that, unlike Rodriguez--in which the passenger's comparative fault was submitted on evidence that her blood alcohol content was over the legal limit and she admitted drinking with the intoxicated driver before getting in the car--there was no evidence that the helicopter passenger consumed alcohol with the pilot and her blood alcohol content was lower than the .10 legal limit. Id. at 144.
This case is distinguishable from Hosto primarily because the evidence was offered for a different purpose than was the evidence at issue here. In Hosto, the defendant was trying to prove that the passenger and the pilot drank together to show her knowledge that the pilot was intoxicated for purposes of her comparative fault. Here, however, evidence of Slater's alcohol consumption was offered in regards to his ability--as the only witness who could testify about the accident and as the driver of the car involved in the accident--to see, hear, perceive and observe his surroundings. Moreover, in Hosto, the evidence of the pilot and the passenger's blood alcohol content, without more, did not show that they had been drinking together all day or that the passenger knew that the pilot was intoxicated. Here, on the other hand, there was evidence that Slater had consumed alcohol; nothing in Hosto or any case law required the Zempels to show that his blood alcohol content was over the legal limit for that evidence to be admissible.
Furthermore, contrary to Slater's argument, the probative value of the officer's testimony with respect to Slater's credibility as a witness and to his fault in the accident was not outweighed by the possibility that the testimony would be prejudicial. And, in any case, the court and counsel took measures approved by the Supreme Court to diminish any undue prejudice. See Rodriguez, 936 S.W.2d at 108. First, the court gave a limiting instruction, at Slater's request, which precluded the jury from considering the evidence that he had consumed two beers as an independent act
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