Breathalyzer Results in Missouri DWI Cases May be Thrown Out

All Driving While Intoxicated cases have two separate aspects: the administrative portion of the case and the criminal portion of the case.  As we all know, the breathalyzer result (BAC) can be an important part of DWI cases and can impact both the administrative and criminal aspects.  On the criminal side, state or city prosecutors will always attempt to get the BAC result into evidence if it is over .08%.  If admitted into evidence a legal presumption of impairment on behalf of the defendant is created, and the government is already well on it’s way to winning the case.  The state or city can of course prove it’s case with evidence other than the BAC, but if over .08%, that alone is very strong evidence of impairment and it makes their job much easier.  As far as the administrative side, the Department of Revenue is going to attempt to take a suspects driver’s license as a result of a BAC that is .08% or greater.  The administrative license suspension in that case would be for 90 days in the event of a first offense, and one year if it is a second offense within 5 years.

In order for the state and municipal prosecutor or the Department of Revenue to use a BAC result, very strict protocol must be followed by the agency that performs routine maintenance on the breathalyzer machines.  The police agencies themselves have a designated officer, known as a Type III, who maintains and calibrates the breathalyzers.  The Missouri Breath Test Program, as it is known to legislators and DWI practitioners, is governed by the Missouri Department of Health and Senior Services.  Specifically, the program is codified in the Code of State Regulations at 19 CSR 25-30.  In those regulations, the breathalyzer must be maintained once every 35 days and it must be tested against a standard simulator solution from approved suppliers.  Under 19 CSR 25-30.051, as it is now written, the standard simulator solution must have a vapor concentration of .10%, .08%, or .04%.  Since the beginning of the Breath Test Program, the agencies who maintain the machines have historically tested them against one of those vapor concentrations rather than all three.  However, on November 30, 2012 the regulations were changed to read that the machines must be tested against a standard simulator solution of .10%, .08%, and .04%.  On January 29 of this year, the “and” was quietly removed and replaced once again with “or”.

As most people know, in the legislative and legal world, the significance of the words “and” as well as “or” can not be understated.  In Missouri, there are approximately 30,000 DWI arrests per year.  In the vast majority of those arrests a BAC result is obtained.  From November 30, 2012 through January 29, 2014, it is safe to assume there were well over 30,000 DWI arrests.  It is also safe to assume that no agency anywhere in the state actually followed the Code of State Regulations as they were written during that time and tested the breathalyzers every 35 days against a solution of .10%, .08%, and .04%.  They most likely tested the machines against one of the three, but as one tiny three letter words makes clear, one test may not have been enough.  It may, however, be enough to get tens of thousands of BAC results thrown out of criminal prosecutions and administrative license suspension cases across the state.  It has already started in the St. Louis area, where an associate judge reinstated several license suspensions as a result of the mistake.  It will be interesting to see how it is handled in Greene County and Southwest, Missouri.  I, for one, am anxious to get the process started.  Stay tuned!

US Supreme Court to Decide if Person Can Be Stopped Based on Anonymous Call

On January 21, 2014 the United States Supreme Court (SCOTUS) heard oral arguments in the case Navarette v. California.  In that case an anonymous caller dialed 911 to inform the police that a person was driving recklessly and had almost ran the caller off the road.  The caller provided only a vague description of the vehicle.  Police officers spotted a vehicle matching the description the caller gave some 19 miles down the road and continued to follow the vehicle for 5 more miles.  After observing no other traffic violations at all, police stopped the vehicle based only on the anonymous call.  Police then found marijuana and the occupants of the car were arrested.  Navarette, the driver of the car, asked his trial court to suppress the marijuana, meaning that the State could not use it as evidence at trial.  Navarette’s argument was that the stop was an illegal stop and seizure in contravention of the Fourth Amendment to the United States Constitution.  The general rule is that police may stop a driver, but only if they have articulable reasonable suspicion that the driver was, is, or is about to commit a crime.  His motion to suppress was denied, and the California Court of Appeals upheld the trial court.  Navarette then appealed the case to the highest Court in the land.

This pending Supreme Court opinion is something that criminal defense practitioners, as well as state and federal prosecutors all over the country, will no doubt watch for closely.  But more importantly, this case potentially has consequences impacting the Constitutional rights of all of us.  Freedom from unlawful search and seizure is something we take for granted every day.  Any time we are stopped by police, we become nervous, agitated, and downright scared.  We surely expect there to be a valid reason for the stop, and a good one at that.  If SCOTUS upholds the California Court of Appeals, a portion of those freedoms we take for granted will be peeled away.  Police and the government will have another legal reason to meddle in the lives of the everyday citizen.  If upheld, what is to stop an ex-spouse or partner, a disgruntled neighbor, an angry co-worker, or a whole host of other people from calling “anonymously” and reporting a non-existent traffic violation for the simple pleasure of knowing that the police will intervene.  That scenario is in direct contrast to the country we all know and have become accustomed to, where law-abiding citizens are not concerned with undue police harassment.  On the one hand, this SCOTUS opinion has the potential to erode those rights we have held so dearly for so long.  On the other, it can establish yet again that the Constitution is not just a historical document we learn about in civics class.  It lives and breathes, and even the almighty Government is bound by it.  A decision on which way we are going is expected later this year.

DUI and DWI True or False

“If I am pulled over and an officer asks me to take field sobriety tests (FST’s), I have to comply”

False. Failure of FST’s is a strong piece of evidence for the government. Many people cannot pass these tests, even when having nothing to drink at all. When you take these tests you are, in most circumstances, simply giving the officer evidence that will later be used against you. Much like your right to remain silent, use your right to refuse FST’s!

“If I am asked to blow into a breathalyzer after being pulled over and arrested, I have to blow or I’ll lose my license for a year automatically”

False. Although the officer will tell you this, he or she is required by the Missouri “Implied Consent Law” to tell you this. The reality is that there are ways to fight the suspension that a good attorney can utilize. When you have consumed even a little bit of alcohol, you are in the grey area for blowing over .08% BAC. However, in many counties including Greene, officers will now seek warrants to draw your blood if you refuse.  If the blood draw comes back above .08%, that would potentially add another license suspension.  This suspension would be for 90 days rather than for one year, but your attorney would still have to fight the one year refusal suspension as well.

“If I blow high enough on a breathalyzer I have to go to jail”

This can be both true and false, depending on the circumstances. Under State law, if you blow over .15% BAC, you must do two days of “shock time” in the jail in order to keep the conviction off of your record. If the BAC is .20% the mandatory “shock time” goes up to five days. This mandatory jail time is only required in State court, however, not municipal court. It is also only required if you try to keep the conviction off of your record with what is called a “suspended imposition of sentence”. All of this is contingent of course on you pleading guilty to the offense or being found guilty after a trial. If you choose to have a trial and are successful, none of this applies.

“If I blow under .08% BAC, I can’t be arrested or prosecuted”

False. Even if you bow under .08% BAC you can still be arrested and prosecuted for DWI. All the statute in Missouri says is that “a person commits the crime of ‘driving while intoxicated’ if he operates a motor vehicle in an intoxicated or drugged condition.” RSMO. Section 577.010 (2012). Therefore, if the prosecuting attorney believes he or she can prove that a person is “under the influence of alcohol” based on other evidence than the BAC, he or she can and will push forward with the prosecution regardless of the BAC under .08%. The prosecutor can also try to use “drug recognition” to prove that someone is impaired on a substance other than alcohol.

“If I’m in my driveway I can’t get a DWI”

False. If you are observed operating a motor vehicle anywhere, even in your own garage, you can get a DWI if the officer believes he or she has probable cause. Operation has been broadly defined by case law and can even include a person being behind the wheel of a vehicle that is turned off , as long as the keys are in the ignition and the engine is capable of running. Be careful! Even if you are trying to sleep it off, keep the keys in your pocket.

“There are different ways I can lose my license in a DWI case other than just being convicted of the DWI”

True. Besides just the criminal side of the case, which carries the possibility of a point suspension, there is also an administrative side of the case dealing specifically with your driving privilege and is against the Department of Revenue (DOR). There are multitude of different types of suspensions and lengths of suspensions. It is important that you consult an experienced and highly trained DWI attorney for all of your various details as it is a complicated process. You do not want to fight the Department of Revenue on your own. This is especially true if you have a commercial driver’s license (CDL) or if you have prior alcohol offenses.