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!