¶1dissenting.
¶2I respectfully dissent. The majority opinion eliminates from § 577.020.3, RSMo 1986, and 13 CSR 50-140.020(6), the requirement that to be valid a chemical test for alcohol content be performed by a per*664son to whom a valid permit has been “issued”. Deciding whether such a permit should be required is not our function. We should give the statute and regulation their plain and ordinary meanings. State v. Cummings, 724 S.W.2d 316, 317 (Mo.App.1987). They obviously require that a permit be “issued” to the person administering the test before the test is conducted.
¶3I agree that the officer did not have to have the permit in his physical possession, but absent proof that it was issued, defendant is correct that the officer did not “possess” a valid permit. If the permit had been “issued” then whether he had it or ever received it would be immaterial. Once the permit has been issued, then I believe the officer possesses it even though he has not yet received it. However, there was no evidence here that the permit had been issued, so defendant is correct that the officer did not possess one.
¶4“Issued” means “sent out”. Zimmer v. Susquehanna County Planning Commission, 14 Pa.Commw. 435, 322 A.2d 420, 421-422 (1974). See also Baker v. Sisk, 1 F.R.D. 232, 235 (E.D.Okla.1938) (summons not “issued” when prepared but when mailed.) Papin v. Imes, 19 Ohio Op.2d 114, 184 N.E.2d 269, 270 (1961) (“issued” means to send out officially or cause to go forth); Ross v. American Radiator and Standard Sanitary Corp., 507 S.W.2d 806, 809 (Tex.Civ.App.1974) (execution not “issued” on preparation by clerk but on delivery to proper officer).
¶5The state had the burden to show that the chemical test was administered by a person to whom a valid permit had been issued. It did not do so. There might be cases where the date of a document would be prima facie its issue date, but here the evidence strongly indicates otherwise. The permit in evidence, although dated September 12, 1985, had not been received by Deputy Brown on the 24th of September, 1985, the date of the test. Had it been mailed or otherwise left the Division of Health on September 12, 1985, he should have received it by then. Under these circumstances, the state did not prove beyond a reasonable doubt that the permit had been issued by September 24, 1985.
¶6To say that because Brown “had completed the appropriate training” on the machine and a permit was dated September 12, 1985, is sufficient, changes the requirement by statute and regulation that the permit must be “issued”. Not requiring the state to prove that the permit was “issued” is “plain judicial legislation” which we are cautioned not to do. See Poling v. Moitra, 717 S.W.2d 520, 522 (Mo. banc 1986).
¶7For this reason I think the evidence of the chemical test should not have been allowed. Absent that evidence there was a failure of proof to establish beyond a reasonable doubt that the defendant was operating the vehicle while intoxicated. I would reverse the judgment and order defendant discharged.