Will Uber Cut Down on DWI’s in Springfield?

According to a recent Springfield News-Leader article, DWI arrests in Springfield have gone down since Uber became operational in Springfield 4 months ago. See the News-Leader article below.

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(Photo: News-Leader Illustration)

When Missouri lawmakers passed a bill this session making it easier for ride-hailing services like Uber and Lyft to operate in the state, they lauded the bill’s potential to reduce drunken driving.

They could have used Springfield as an example.

Since the City Council tweaked the rules to help bring Uber to Springfield in November, the number of DWI arrests in the city has gone down. But there’s some debate about how much credit to give the new companies, which allow customers to hail rides from nearby drivers using an application on their smartphones.

An Uber spokeswoman said the company’s drivers do most of their pickups on the weekends in downtown Springfield, where people might otherwise choose to drink and drive.

Lt. Stacey Parton, in the Springfield Police Department’s traffic unit, said he has the Uber application on his phone and he sees its potential for reducing drunken driving, but he needs more data to truly understand Uber’s impact.

“I will say that Uber has had an effect,” Parton said. “Statistically, I am not sure that we can quantify it right now, but it has had a good effect.”

Uber launched in Springfield in November
Uber launched in Springfield in November (Photo: David Ramos, Getty Images)
From December to March — the first four full months that Uber has been operational in Springfield — there was an average of 47 DWI arrests per month in Springfield.

That’s down from an average of 55 DWI arrests per month in 2016, and way down from the five-year average of 76 DWI arrests per month in the city.

But DWI arrests had been trending down in Springfield prior to Uber’s arrival in November and Lyft launching in January.

Parton said there are other factors to consider when looking at DWI numbers.

In late 2014, Greene County instituted a policy allowing police to draw blood from suspected drunken drivers who refuse a breathalyzer test. Parton said he believes that policy is working as a deterrent.

“Word has gotten around,” Parton said. “And I think it has caused people to think more about drinking and driving.”

Parton also pointed to ongoing public awareness campaigns, more housing downtown and the dissolution of SPD’s dedicated DWI unit as factors that might be leading to fewer DWI arrests.

Academic studies have drawn varying conclusions about the impact of ride-hailing companies on drunken driving.

A 2016 study from the American Journal of Epidemiology found that Uber did not have a noticeable impact on drunken-driving fatalities in the nation’s 100 most populated metropolitan areas. But Uber points to a 2015 Temple University study that found a drop in alcohol-related driving fatalities after Uber was introduced in California.

On its website, Uber also touts a 10 percent drop in DWI arrests that followed Uber’s launch in Seattle.

 

Click Here for the Full Article

Weapons Offenses – Guns in Schools

Just last week a student at Central High School in Springfield, Missouri was arrested for possessing a firearm on school grounds after a gun was accidentally discharged from his backpack as he was passing it to another student.  Springfield criminal defense attorney Adam Woody was interviewed on the local CBS affiliate, KOLR10, regarding the potential legal consequences of possessing a gun on school grounds.

Even though the student is a teenager, he is apparently 17 years old.  In Missouri, 17 is the technical age of adulthood to be tried in adult court.  What this young man is facing is the class D felony of Unlawful Use of a Weapon.   Although the statute is long a convoluted, one of the ways in which a person commits this crime is if he or she carries a gun or other weapon readily capable of lethal use into a school, onto a school bus, or onto the premises of any function or activity sponsored by school officials.  If the weapon is an unloaded gun, the offense is a class A misdemeanor which carries maximum penalties of up to a $1,000 fine or up to one year on the county jail.  If the weapon is a loaded gun, however, the offense is a class D felony, which carries up to a $5,000 fine and/or up to four years in the state Department of Corrections.

With the seemingly recent rise in school violence, local authorities are sure to take this action quite seriously.  The local media will no doubt continue to keep the public well advised as to what happens to the young defendant in this case.  Stay tuned for further information and interviews from Adam Woody.

As always, if you have any questions regarding criminal law, do not hesitate to contact Adam Woody by phone or e-mail, adam@adamwoody.com.

Excessive Force By Police

In light of the recent events in Ferguson, Missouri where an unarmed 18 year old man was gunned down by police, it is important that we stop and remember that there are ways to combat excessive force by police. When race is involved, it is obviously a polarizing issue. Media and news outlets from across the nation have weighed in on the Ferguson Police shooting. I was recently interviewed by our local ABC affiliate to discuss the potential ramifications of police brutality or excessive force.

Realistically, any time there is an officer involved shooting there is a potential of three different things happening: An internal investigation by the police department, a criminal investigation by the police department or an outside agency, and a civil lawsuit against the officer and/or the department.
Internal Investigation – This is an investigation done by the police department that employs the officer involved in the shooting. Typically the officer is placed on paid administrative leave while the investigation is conducted. The point of this investigation is to determine what disciplinary action, if any, the officer should face for the shooting. The most severe thing that can happen here is that the officer can lose his or her job. However, the department could also determine that the officer’s actions were justified, leading to no discipline whatsoever.
Criminal Investigation – There is the possibility that either the department that employs the officer involved in the shooting or an outside agency could conduct a criminal investigation to determine if criminal charges should be sent to the prosecuting attorney against the officer involved in the shooting. In my opinion, it is a terrible idea, not to mention a deep conflict of interest, for the police agency that employs the officer to conduct the criminal investigation. It is much safer and reduces the appearance of impropriety if an outside agency conducts any criminal investigation. Much like in the Ferguson shooting case, rather than the Ferguson Police Department investigating the case, the FBI has stepped in to investigate. Once the investigation is complete, the case file will likely be turned over the the prosecuting attorney to determine if there is any criminal liability on the part of the officer. If it is decided that there are grounds for charges, which would include a criminal mental state by the officer, it is up to the prosecutor on what charges to file. Those can range from misdemeanor assault all the way up to various degrees of murder. Oftentimes, however, the shooting will be determined justified and no criminal charges are filed. If criminal charges are filed, the burden is on the prosecutor to be able to prove them beyond a reasonable doubt at trial.
Civil Rights Lawsuit – The last possible outcome of a police involved shooting is for the victim or victim’s family to file a civil rights lawsuit alleging that the police officer violated the victim’s civil rights. There is a provision of the United States Code, 42 U.S.C. Section 1983, which allows for such a lawsuit. The lawsuit will usually name the officer involved in the shooting, as well as the police department that employs he or she. Any time a police officer touches a civilian, even if it is with an object, or even a bullet in the most severe instances, legally speaking a seizure has occurred. As the Fourth Amendment to the U.S. Constitution states, all citizens are presumed free from unlawful searches and seizures. Therefore, when it is alleged that the Fourth Amendment has been violated, a 1983 action can be filed. It is then up to the officer or the department to justify the actions of the officer and to demonstrate that the actions were lawful. As has been reported, the family in the Ferguson, Missouri case has hired the same attorney from Florida who Trayvon Martin’s family has hired. It is anticipated that a civil case against Ferguson PD and the officer is imminent. Once a civil 1983 action has been filed, it is up to the victim or his family to prove the allegation by a preponderance of the evidence to the jury, which basically means that the force used by the officer was more likely than not excessive under the circumstances.

Although these types of cases are polarizing and can sometimes grip a nation, it is best to let the various legal processes play out. It is not time to jump to conclusions either way, rather, it is time to let the investigators investigate and to simply observe as the legal chess match subsequently ensues. It is no doubt going to be a long process, and surely emotions that lead to criminal behavior such as rioting, burglary, and damaging people’s property cannot run this high for long.

DWI Field Sobriety Testing: Post 2 of 3 Post Series – Walk and Turn Test

Back on July 7 I began a 3 post blog series regarding Standard Field Sobriety Testing in DWI cases. In Post 1 I discussed in detail the Horizontal Gaze Nystagmus Test, better known as “the eye test”. Today, I hope to provide details and information regarding the field sobriety test that should be administered by law enforcement directly following the HGN, the Walk and Turn Test, also known as the Heel to Toe Test. As indicated in Post 1, other than blood alcohol content evidence, the Field Sobriety Tests are what prosecutors, judges, and juries rely on in determining the guilt or innocence of those accused of driving while intoxicated. The Walk and Turn Test (WAT) is the first opportunity the investigating officer has during the field sobriety tests to observe whether there is actual physical impairment of a person’s balance and walking. Of course, during the initial contact phase of the investigation the officer is already looking for possible signs of impairment, but the WAT is the first sobriety test designed to detect physical impairment.

On the WAT there are a possibility of eight indicators of impairment. Many people claim that they cannot complete this test whether sober or intoxicated. However, evidence shows that exhibiting two out of eight clues indicates a 79% probability of that subject having a BAC over the presumed legal limit of .08%. Like the HGN, however, the test is only as accurate as the person (i.e. law enforcement officer) administering the test and only as accurate as the instructions that are given. This is why it is critically important to have an attorney in these cases who understands and knows the field sobriety testing protocol so that they can determine whether the officers administered the test appropriately and, if not, can adequately cross-examine the officer and bring those inaccuracies to the Court or jury’s attention.

The WAT test is a divided attention test. What this means is that it combines a physical and a mental task at the same time. Like all divided attention tests there are two stages: on the WAT there is an instructions stage and a balance and counting stage. Both stages are important as they can both affect a subject’s overall performance, but the instruction phase is given by the officer administering the test. It is critically important that the instructions are given properly, otherwise, the results cannot and should not be relied upon by the judge or the jury. Also in order to be relied upon with any sense of accuracy, the test must be conducted on a surface that is dry, hard, level, and non-slippery. Other factors that may play a role in the accuracy of this test is if the subject is 65 years of age or older, or is greater than 50 pounds overweight. Although these factors may affect people differently, they are something to consider and should be brought to the Court or jury’s attention if present.

To have any accuracy whatsoever, the instruction phase outlined in the officers training manual must be completely adhered to. There are sixteen distinct points of instruction that must be given prior to the subject performing the WAT test. If any instructions are left out, the results of the test are greatly compromised. The officer’s are taught to give the instructions from a safe distance from the subject. Then, the following instructions must be given:
1) Tell the suspect to place their left foot on a line (which can be an imaginary line, although an existing line such as a parking lot line is preferred) with the right foot in front, heel touching toe, keeping the arms at their sides. Demonstrate as they do it.
2) Tell the suspect not to begin the test until instructed to do so. Ask suspect if he or she understands.
3) Tell the suspect that he or she will be expected to take nine heel-to-toe steps down the line, make a turn in a prescribed manner, and return nine heel-to-toe steps back to the starting position. Tell the suspect that you will demonstrate.
4) Explain and demonstrate using three heel-to-toe steps.
5) Explain and demonstrate the turn procedure.
6) Explain and demonstrate three heel-to-toe steps for return.
7) Ask the suspect if he or she understands.
8) Tell the suspect to watch his or her feet at all times.
9) Tell suspect that he or she is to count each step out loud (so that you can hear him or her).
10) Tell suspect that he or she is to keep his or her arms at their sides at all times during the test.
11) Tell the suspect that he or she is not to stop the test once it has begun.
12) Instruct the suspect that if he or she steps off the line, to place their foot back on the line and continue walking in the heel-to-to fashion until the test is complete.
13) Ask the suspect if he or she understands the instructions for the test.
14) Ask the suspect if he or she feels they cannot perform the test as explained.
15) Tell the suspect that the first step from where he or she is currently standing is step one.
16) As the suspect if he or she has any physical disabilities that would not enable them to complete the test.
17) Tell the suspect to begin the test.

Once again, if any of these instructions are left out of the first phase by the officer, that particular instruction cannot be used as a clue, and the validity of the entire test can be called into question. During the test, the eight possible indicators of impairment that may be present are each included in the instructions. Although there are a total of 18 steps and a turn on the test, if an indicator of impairment occurs only one time it is considered a clue. That is what makes the walk and turn test such a difficult test for many people. There are numerous ways to exhibit an indicator of impairment and it seems even non-impaired people could show one or more of the indicators.

With the officer’s report that is presented to the prosecuting attorney after a DWI arrest is made is a separate report called the “alcohol influence report”. On the AIR there is a diagram of the WAT test, as well as nine separate boxes that can be check for each indicator. During the WAT, the investigating officer is looking for the following:
1) Fails to maintain heel-to-toe stance (this is during the instructions when the person has to keep right foot in front of their left foot while the instructions are given).
2) Starts before instructed to begin.
3) Stops while walking to steady self.
4) Does not touch heel-to-toe (misses by more than 1/2 inch).
5) Loses balance while walking (steps off line).
6) Uses arms for balance (raises arms more than 6 inches from side).
7) Loses balance while turning or made an improper turn.
8) Incorrect number of steps.
9) Cannot perform or refused to do the test.

If two or more of the above indicators are present the subject is considered to have failed the test and officers will testify on the witness stand that the failure of that test indicates a possibility that the subject was impaired. The prosecutor will then try to couple that failure with other indicators to prove their case beyond a reasonable doubt to the judge or jury. As with the HGN test, if the WAT is not recorded on an audio/video camera, it will be difficult to uncover whether an officer administered the test correctly by giving the correct instructions. However, it may be difficult for an officer to regurgitate every single instruction while on the witness stand as well. That is again why it takes a criminal defense attorney who is knowledgeable in field sobriety testing to effectively cross-examine highly trained and experienced police officers.

Within the next few weeks I plan to do the final post in the series, which will cover the One-Leg Stand. I certainly hope that my posts have been insightful and informative up to this point. My goal is not to try to thwart DWI investigations or to encourage drinking and driving at all. I am simply hoping to make you more aware of these tests should you find yourself being put through roadside testing. Perhaps then, the public will be on a level playing field with police if being investigated. Feel free to contact my office if any questions arise or if anything is unclear.

Castle Doctrine – Adam Woody on Self-Defense in Missouri

Adam Woody was featured on the Springfield, Mo. CBS affiliate KOLR10 to discuss the “castle doctrine”.

The “castle doctrine” is essentially the legal right that everyone has in Missouri to defend themselves or another person when someone comes into their home unlawfully.  The use of force in that situation can be deadly force if the person using force reasonably believes it is necessary to prevent imminent harm.  The “castle doctrine” does not just extend to a person’s home.  It can include a vehicle, a hotel room, and essentially anywhere else that person has a lawful right to be.  Historically Missouri was a “retreat state”, which means that even if someone was in their own home at the time of unlawful entry by another person, the home owner was required to do everything he or she could to remove him or herself from the situation before using force.  That changed in 2010, and the “castle doctrine” was passed into law.  Now, deadly force can be used any time someone unlawfully enters a home or vehicle.  RSMo. Section 563.031 is where the “castle doctrine” can be found in the Missouri Statutes.

Unfortunately, this is a hot topic in and around the Springfield area where home invasions are becoming more common.  There have been several home invasion shootings over the past several weeks, and when you read a headline such as this, the homeowner is going to be justified under the “castle doctrine” just about every time.  This is basically a form of self-defense, however, the aggressor does not have to be using force that is reasonable under the circumstances.  Deadly force by a home owner can be justified just about any time a person is entering a home unlawfully no matter what that person’s intentions.  Perhaps the “castle doctrine” will lead to fewer home invasions, or perhaps it will simply lead to more shootings and deaths.  Only time will tell.

DWI Field Sobriety Testing: Post 1 of 3 Post Series – HGN (Eye) Test

Aside from blood alcohol tests, the most important evidence of impairment that police, prosecutors, judges, and juries rely on in driving while intoxicated cases are the results of the field sobriety tests. Most of these tests are difficult for most anyone to pass, whether sober or impaired. The key to successful defense against possible false accusations by police or prosecutors is to know and understand the tests before you decide to comply with the officer’s request and take them. Over the next few weeks, I am going to go into each of the three standard field sobriety tests in detail in an effort to provide the information and knowledge necessary so that people can be better prepared if encountered with a roadside test.

Of the three standardized field sobriety tests (SFST’s) that are routinely conducted in DWI cases, the one that is the least understood by the general public, judges, and prosecutors alike is the dreaded eye test, technically known as the Horizontal Gaze Nystagmus Test (HGN). It is by far the most scientific test of the three, and it can actually be the most reliable. However, if it is conducted improperly, the results can be severely compromised. Because of this, although the results can be very reliable to determine whether there is alcohol in the blood stream, the test is only as good as the person administering it.

Many people believe that when an officer is conducting the test of the eyes they are simply checking to see whether the subject’s head is moving or whether the subject can follow simple instructions. In reality, the officer is checking for “nystagmus” which is an involuntary jerking of the eye. There are several types of nystagmus, but only alcohol and a few other drugs actually cause horizontal gaze nystagmus. When under cross-examination by a skilled defense attorney most officers will not know the difference between HGN and other forms of nystagmus such as fatigue nystagmus, optokinetic nystagmus, or nystagmus caused by a previous head injury. Of course, if the trained police officer doesn’t know the difference, neither will the judge or jury. That is why it is important for the officers to be cross-examined on these details in order to impeach their credibility. If they don’t know whether what they are seeing is caused by alcohol or whether is it caused by something else, how can a judge or jury be convinced beyond a reasonable doubt?

During the test, the officer is looking for six potential clues of impairment. In each eye the officer is looking: 1) to see whether the eye moves smoothly from side to side or does it jerk noticeably (this portion of the test is known as lack of smooth pursuit); 2) whether the eye jerks distinctly when it moves as far to the side as possible and is kept there for a minimum of four seconds (this part of the test is known as distinct and sustained nystagmus at maximum deviation); and 3) whether the subject’s eye starts to jerk noticeably as it moves toward the side prior to it reaching a 45 degree angle (this is known as onset of nystagmus prior to 45 degrees). If all six of these clues are present, studies show that the test has a 77% accuracy rate at detecting subjects at or above a 0.10 BAC.

Although potentially 77% accurate, the test must be conducted precisely according to protocol. If not, the results are substantially compromised. When conducting a roadside field sobriety test, the officer’s patrol car is usually equipped with a dashcam that is recording the entire incident on both video and audio. Unfortunately for those who have been pulled over it is up to the individual officer to save the video as evidence. It is not unheard of to see an officer fail to do so because the video is often the only way that their performance in conducting the HGN can be impeached. Do not be afraid to ask the officer to save the dashcam video of the arrest. There is still nothing that requires the officer to do so, but it is worth asking because the evidence can be critically important.

In conducting the HGN, the following protocol must be followed:
The stimulus (finger, tip of pin, etc.) must be held approximately 12-15 inches from the tip of the subjects nose.
The officer must check to make sure that the eyes track equally, that the pupils are of equal size, and that there is no resting nystagmus. The presence of any of these things could mean there was a previous head injury by the subject or resting nystagmus could detect the presence of a disassociative drug such as PCP, which can be dangerous for the officer.

First Clue – Check for Smooth Pursuit – Check suspect’s left eye first. Begin from center of the nose to the maximum deviation in approximately 2 seconds. Then check the right eye by moving back across the subjects face to a maximum deviation at approximately a 4 second pace. Then go back to center approximately 2 seconds. You then must repeat the process always doing the test twice for each eye.

Second Clue – Check for Distinct and Sustained Nystagmus at Maximum Deviation – Check the left eye first. Eye must follow stimulus to maximum deviation (no white showing in corner of eye). Eye must be held in this position for at least 4 seconds in order for this clue to be scored. Check the right eye. Again, repeat in each eye.

Third Clue – Check for Angle of Onset Prior to 45 Degrees – Check the left eye first once again. The eye must follow the stimulus from the center of the suspect’s nose to near the edge of the suspect’s shoulder to a 45 degree angle, leaving some white showing in the corner of the eye, at approximately a 4 second pace. Check the right eye, and repeat the entire cycle again in each eye.

The final steps of the test includes checking for vertical gaze nystagmus, which is the same process as checking for smooth pursuit only up and down, and the last thing to do is to check for lack of convergence. Both VGN and lack of convergence are not clues to be scored during the HGN test, but could aid the officer in developing suspicion of either a high level of alcohol in the blood or other types of drugs as possible intoxicants. If each of the above steps are conducted appropriately, the test should take no less than 64 seconds and realistically probably longer for a good, accurate test.

Once again, if this test is conducted properly by the arresting officer it can be very solid evidence of the presence of alcohol in a person’s system. However, to uncover poor administration of the HGN, and any other FST, it takes a skilled criminal defense attorney who is knowledgeable in the area of DWI defense.

Over the next couple of weeks, posts 2 and 3 of the series will cover the Walk and Turn Test and the One-leg Stand Test. If anyone should have any questions or want any advice, don’t hesitate to contact our office. Until then, be safe and smart out there!

Attorneys for Craig Michael Wood Want Statements Thrown Out

Last week a flurry of attention was again brought on the accused killer of Hailey Owens, Craig Michael Wood.  This time, it was because his attorneys have now filed a Motion to Suppress his statements to police.  Motions to Suppress are frequently filed and are essentially asking the court not to consider certain pieces of evidence in reaching their conclusion, or to keep certain pieces of evidence from being presented to a jury.  Wood’s attorneys are asking for such relief, in part, because of what they believe is a violation of his Miranda Rights.  What many people do not understand is that Miranda does not apply to every single arrest.  Most people believe that immediately when a person is arrested, they must be given their Miranda warnings by police.  That’s not actually true.  Miranda only applies when there is a custodial interrogation.  What this means is that if someone has been arrested, they must be given their Miranda warnings only before police begin to ask them incriminating questions.  If police are simply arresting someone and transporting them to jail, Miranda is not required.  Then, if the suspect makes unsolicited incriminating statements, those statements are admissible in Court.

Attorney Adam Woody was asked by the local CBS and ABC affiliates, KOLR10 and KSPR, to provide insight into the legal basis and motivation for filing Motions to Suppress statements. This case has gained regional and national attention as well, as Adam was featured on a telecast on KCTV5 in Kansas City.  This case is no doubt polarizing  and the facts are everyone’s worst nightmare, but Wood’s attorneys and the prosecutors on the case alike are doing everything they can to ensure that justice is served for everyone involved.

Differences Between Civil Wrongful Death Lawsuits and Criminal Prosecutions

The tragic death of Hailey Owens that has an entire community in mourning took another turn last week when her parents filed a civil wrongful death lawsuit against her accused killer, Craig Michael Wood.  The lawsuit prompts new questions about the case, as well as about the motivation behind filing the lawsuit.  Among those questions is a general one: What is the difference between the lawsuit that was filed and the prosecution that the accused killer is already facing?  Matt Lupoli, a reporter with the CBS News affiliate in Southwest Missouri, KOLR10, did a story last week where attorney Adam Woody was interviewed regarding the differences. Mr. Lupoli did a great job highlighting the major differences, but we hope to expand further on the idea for clarity.

A wrongful death lawsuit may be filed when a person negligently or intentionally causes the death of another person.  It is important to note that this is vastly different from criminal prosecutions for first degree murder in which the state must prove that a person “knowingly causes the death of another person after deliberation upon the matter”.  A person acts “knowingly” when “he is aware that his conduct is practically certain to cause that result.”  In the criminal aspect of a case, there is no liability for first degree murder when one is simply “negligent”.  That tends to make civil lawsuits for wrongful death substantially easier to prove than their criminal counterpart.

Additionally, the burden of proof upon the plaintiff (the side that brings the lawsuit or the prosecution) is substantially different in criminal and civil actions.  On the one hand the burden of proof in a civil wrongful death case  is “preponderance of the evidence”.  The preponderance standard basically means more likely than not.  On the other hand, in criminal prosecutions, the burden on the prosecutor is “proof beyond a reasonable doubt”. That burden is defined as being met when the evidence leaves one “firmly convinced” of the defendant’s guilt.  Proof beyond a reasonable doubt is the highest burden of proof that we have in our justice system and is meant to ensure a person is not wrongfully convicted in a criminal case.  If convicted in a criminal prosecution, a person stands the chance of losing his or her liberty for a substantial period of time.  If found guilty of first degree murder, for example, the only possible punishment is life in prison without the possibility of parole.  The high burden of proof exists in criminal case at least in part because losing one’s liberty is seen as more significant than losing one’s money, which is the only thing that can taken in a civil case.

As is clear in the case of Hailey Owens, both a civil case and a criminal prosecution may proceed at the same time.  One does not preclude the other.  However, it is highly unlikely that the defendant will ever tell his or her side of the story in the civil case.  He or she will likely assert their Fifth Amendment right against self-incrimination.  Otherwise, whatever they say in the civil case could potentially be used against them in the criminal prosecution.  If they do assert the Fifth, however, that silence can be considered as an admission of guilt to be used against them in the civil case.

Civil wrongful death cases tend to be much easier to prove than criminal prosecutions.  That has to do in large part with the lower burden of proof and with the plaintiff having to prove merely negligence.  To use a famous example that everyone is familiar with, the O.J. Simpson case illustrates the differences.  As we are all aware, O.J. was found not guilty of murdering his ex-wife, Nicole Brown Simpson, after a jury trial .  However, in the civil wrongful death lawsuit he was found responsible and ordered to pay the family of Nicole $25 million.  

In the case against Craig Michael Wood, it is alleged that he has a large trust.  It is unclear when the trust vests, or if he will ever actually get any of the money from the trust.  It is equally unclear whether the family of Hailey Owens will ever collect any money from her alleged killer even if they get a large judgment against him.  Aside from the civil case being easier to prove than the criminal case, one thing is clear: the twists and turns of the Hailey Owens case are just beginning and the case is sure to have at least one community on the edge of its seat over the next several months and years.

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.