Author Archives: wthornburg

Restraint or compliance with authority is an arrest

Being physically restrained by an officer and submitting to officer’s authority constitutes an arrest for purposes of determining whether or not a blood alcohol test was legally conducted.

That’s all an appellate court needed to reverse and remand a lower court’s decision to rescind a driver’s suspension in a DWI case involving an accident.

FACTS

This case began roughly at 2 a.m. on November 12, 2016. Respondent (who is the Driver and Defendant) was driving home on Interstate 44 after meeting friends at a local restaurant. Evidence at trial later showed that she was driving with a blood alcohol content of .175%. Respondent struck another vehicle from behind, causing both drivers to lose control. Respondent’s car hit an abandoned vehicle parked on the shoulder, flipped, landed on its roof, and slid across four lanes of traffic before coming to rest in the middle of the highway. The Officer at the scene requested paramedics.

Before the paramedics arrived, Officer spoke with Respondent, who informed him that she was the driver of the overturned vehicle. While speaking with Respondent, Officer noticed her breath smelled like alcohol, she had watery, blood-shot eyes, her speech was slurred, and she seemed confused and disoriented. Officer asked if she had been drinking. Respondent eventually stated she had had some drinks with friends, and “what’s that have to do with anything [?] (sic) [Y]ou need to worry about getting all of my clothes off the road.” Officer asked Respondent to walk to the curb and sit down. As she tried to sit on the curb, she lost her balance and almost fell over. Eventually, Officer had to handcuff Respondent for her own safety, because she kept attempting to re-enter the highway to collect items that were thrown from her car in the accident.

Officer testified that at this time Respondent was in his custody, but not under arrest. Officer did not conduct any field sobriety tests because of Respondent’s injuries. When the paramedics arrived Officer removed the handcuffs so they could treat Respondent.

Another officer met Respondent at the hospital, where she was in a hospital bed with her neck stabilized. Officer read Respondent the Implied Consent Warning contained in the Missouri Department of Revenue Alcohol Influence Report (“Alcohol Influence Report”). This warning states “You are under arrest and I have reasonable grounds to believe you were driving a motor vehicle while you were in an intoxicated . . . condition…” etc.

Respondent consented to the blood draw. Officer again Mirandized Respondent, and she stated that she understood her rights.

Trial court ruled in favor of the Respondent/Defendant, and reversed the decision to suspend her driver’s license for one year. The Appellate court then reversed and remanded the lower court’s decision rescinding the suspension.

Arguments

Appellate Court found two occasions where an arrest was made under these facts.

1) The first point the Defendant/Respondent argued was that she was not arrested.  Now the trial court had reasoned that the State failed to prove by a preponderance of the evidence that Respondent had been arrested at the time she submitted to the blood alcohol test.

The Appellate Court, however, disagreed saying that the Respondent was injured in a serious crash, was told she was under arrest while hospitalized, agreed to provide a blood sample requested under Missouri’s Implied Consent Law, and did not attempt to terminate the encounter with law enforcement. Thus, for those reasons, the Respondent was arrested by actual physical restraint, and by her submission to the Officer’s authority.

Typically, if a Defendant is under arrest, an officer will conduct field sobriety tests at the scene of the accident. But because of Respondent’s injuries, he chose not to do so. And when the Officer arrived at the hospital, Respondent was in a hospital bed with a brace around her neck. The Officer Mirandized Respondent and read her the Implied Consent Warning informing her that she was under arrest. Further, Officer testified that he decided not to handcuff Respondent only because of her injuries, but that he considered her under arrest at that time.

2)  As to the second point, the State argued that the Respondent submitted to authority when she complied with the officer’s request to submit to the blood alcohol test.

Both the trial court and Respondent reasoned that because the test was completely voluntary, and Respondent could refuse to take it, there was no show of authority by the Officer to which Respondent could submit.

The Appellate Court, however, concluded that this argument ignores the fact that Officer told Respondent her license would be immediately revoked if she refused to take the blood alcohol test, after telling her she was under arrest. That is a show of authority, and Respondent submitted to that show of authority when she agreed to take the blood alcohol test and did not leave the premises.

The Appellate Court said that even if just one of the two issues could be proven, that she was physically restrained or just submitted to the officer’s authority, only one would be enough to have legally conducted a blood alcohol test.

The opinion was written by Judge Roy L. Richter, with Judges Robert M. Clayton III, Presiding Judge, and Robert G. Dowd, Jr., concurring. 

DWI defense win turns on credibility of officer

This win for the Defendant/Driver boiled down to the credibility of the witness and whether or not he met the legal standard to have stopped the Defendant in the first place.

In this DWI case, an Officer approached a driver based on what is referred to as a community caretaker check (Terry Stop). He claimed in his probable cause statement that he was just checking on the driver to see if he was okay. However, the law states that community caretaker function requires more than speculation, it requires specific and articulable facts, which when asked at trial, the officer said were absent.

Next, at trial, he seems to change his reasoning for approaching and stopping the man, stating that the Driver had parked his car in the entrance to a restaurant in violation of the law. However, there must be specific and articulable facts from the totality of the circumstances to constitute at least reasonable suspicion of criminal activity, so as to justify a warrantless traffic stop even when investigative, temporary, and non-custodial.

FACTS:

Officer with the Missouri State Highway Patrol reports in his probable cause statement that at approximately 2:12 a.m., he noticed Defendant’s vehicle parked in the entrance to the parking lot of a restaurant.

Officer’s probable cause statement did not indicate that he had observed any traffic violation to support his Terry stop and the Officer did not ticket Defendant for a traffic violation regarding the location of his vehicle. Instead, Officer’s probable cause statement was as follows: “Concerned the driver may be might be [sic] experiencing mechanical difficulties, having an unknown emergency or needing assistance (community caretaker function), I approached the Alford [vehicle].”

Both in his deposition testimony and at trial, the Officer confirmed that he did not observe any mechanical difficulty with the Defendant’s vehicle; he did not observe any malfunctioning equipment; he did not observe any flat tires; he did not observe any engine trouble and, in fact, confirmed that the engine was running at all relevant times; and, he did not observe any other evidence that the motorist in the vehicle was in any distress.

But what happened next at trial that likely blew the Officer’s credibility.

For the first time, at trial and in response to leading questions from the prosecuting attorney, Officer said the vehicle was not just in the entrance to the restaurant, but was actually “blocking the entrance” and was unlawfully parked in a state right-of-way in violation of the law.

CREDIBILITY ISSUE:

The trial court expressly found this belated assertion by the Officer to be “without merit” and “not credible.”

After the Officer made the initial contact with Defendant, Officer investigated and subsequently arrested Defendant for driving while intoxicated. Defendant was then charged with DWI.

Defendant and his attorney then filed a motion to suppress all evidence arising from the initial Terry stop on the grounds that it was not justified by reasonable suspicion of criminal activity or by the Officer’s role as a community caretaker.

The trial court sustained Defendant’s motion to suppress, concluding that “the State has offered no evidence concerning what specific law or ordinance Defendant was violating.”

The Trial Court concluded: The State’s argument that any traffic violation existed at the time of Officer’s Terry stop was “undermined by the fact that Defendant was not issued a ticket;” and the Officer’s trial testimony was “not credible” as it conflicted with “his probable cause statement [and] his deposition;” and finally, that “there were no facts from which one could reasonably infer that Defendant was in need of assistance.”

HOLDING:

The State timely filed this interlocutory appeal of the Trial Court’s decision for which the Western District Court of Appeals affirmed, holding the following:

Because there is substantial evidence in the record to support the trial court’s credibility finding and corresponding conclusion that the State did not meet its burden to demonstrate a traffic violation had occurred and, hence there was no “reasonable suspicion” in support of Sergeant Berry’s investigative detention, and because deferring to the trial court’s factual findings and credibility determinations, the entirety of the record in this case does not support a conclusion that the trial court clearly erred in finding that the Officer did not possess reasonable, articulable facts that justified his approaching Defendant’s vehicle for “community caretaker” safety reasons or for motorist assistance, therefore, Officer’s Terry stop was not constitutional.

Appellate judges were Mark D. Pfeiffer, Presiding Judge, and Alok Ahuja and Gary D. Witt.

Driver needs to subpoena arresting officer in order to cross examine

Man argues in his DWI license revocation case that his request to speak first with his attorney should not have been considered by an officer to be a refusal to submit to a chemical test.

In this Western District of Missouri case, Defendant/Appellant appealed his judgment of the Circuit Court of Jackson County that had sustained the revocation of his driving privilege.

He raised one point on appeal that alleged there was insufficient evidence to establish that he had refused to submit to a chemical test because he requested to speak to an attorney, and the arresting officer improperly considered that a refusal.

FACTS

A Kansas City Police Department Officer observed Appellant commit multiple traffic violations, including running a stop sign and striking a curb. Officer activated his lights and siren. Appellant was slow to respond but eventually pulled over and stopped. Officer immediately detected the strong odor of alcohol from Appellant’s breath and person. Appellant’s eyes appeared watery and bloodshot; his speech was heavily slurred and mumbled.

Officer asked Appellant to exit the vehicle and submit to field sobriety tests. Appellant exited the vehicle and Officer observed that he had difficulty balancing and was swaying and staggering. Officer observed signs of intoxication on the Horizontal Gaze Nystagmus test, the walk and turn test, and on the one leg stand test.

Appellant was placed under arrest and transported to East Patrol Division for further investigation. At the Patrol Division, Officer read Missouri’s Implied Consent Law to Appellant and asked him to submit to a breath test. According to Officer’s report, Appellant refused the test by remaining silent in response to Officer’s request.  His refusal to respond was deemed to be a refusal to submit to the test.

The Director of Revenue (“Director”) notified Appellant that his driving privilege was being revoked. Appellant filed a petition for review. The court held a trial on July 25, 2019 (“Trial”). Neither party subpoenaed the police officer to appear at Trial. The

Director called no witnesses and submitted its case on the administrative record which included the Alcohol Influence Report, which contained Officer’s narrative of the events, and Appellant’s driving record.

Appellant objected to the admission of the records, arguing that it violated Appellant’s right to cross-examine Officer. The circuit court overruled the objection and admitted the Director’s certified records. Appellant ‘s attorney then sought to make an “offer of proof” regarding what he would have asked Officer had the officer been present at Trial.

Appellant took the stand during his case and testified that he did not refuse to submit to a breath analysis test but, rather, had requested to speak with his attorney before consenting to the test and the officer wrongly deemed that a refusal. The circuit court found that Appellant had refused to submit to the test and entered judgment sustaining the revocation of Appellant’s driving privilege. Appellant then filed his appeal.

HOLDING

The Appellate Court affirmed the revocation with the following holding:

First, the Circuit court was free to disbelieve Collier’s testimony that he asked to speak with an attorney prior to submitting to a chemical test and, instead, found the officer’s narrative credible regarding the circumstances of the refusal. To the extent Collier wished to cross-examine the officer, it was incumbent on Collier to subpoena the officer to appear.

Second, the Director of Revenue met its burden of production by admitting administrative records which included the Alcohol Incident Report and the officer’s narrative into evidence.

The reasoning was that while the statute (302.312.1) addresses the “admissibility” of the records and not the “credibility” of the records.  Therefore, the Appellate Court ruled that the circuit court did not err in finding this evidence credible and therefore there was sufficient evidence to support the judgment that the Appellant refused to submit to a breath analysis test.

The opinion was written by Judge Gary D. Witt.

Probable cause is a fluid concept

The Eastern District of Missouri Court of Appeals ruled that absence of some signs of intoxication does not negate the presence of other evidence of intoxication, and innocent explanations for a driver’s behavior do not negate the facts that establish probable cause.

This was a case on judicial review of a license suspension by the Director of Revenue (DOR).  The Trial Court reversed the suspension of the Driver’s license stating there was no probable cause to arrest the Driver/Defendant. The appellate court, however, disagreed and stated that the judgment restoring driving privileges was reversed with directions to affirm the suspension.

Facts

The Appellate Court reviewed the following facts:  On September 6, 2018, at approximately 8:01 p.m., the law enforcement officer (Trooper), received a complaint of careless and imprudent driving on Interstate 44 near the eastbound 205 mile marker. The report referenced a vehicle that was described as a black Jeep Grand Cherokee that was reportedly tailgating and speeding, and a license plate number was provided. The trooper subsequently observed the vehicle near the 213 mile marker and began pacing it. He observed that the vehicle was traveling at a rate of 78 miles per hour in a 70 mile-per-hour zone. Trooper further observed the vehicle driving in the left lane while not passing, observed the vehicle drive onto the left shoulder, and then observed the vehicle move to the right lane without signaling. Trooper initiated a traffic stop on the vehicle and the driver stopped without difficulty at the 216.8-mile marker. At approximately 8:10 p.m., the trooper made contact with the driver of the vehicle and requested his license and insurance documentation, which the driver provided without difficulty. Trooper identified the driver by his Missouri Driver License. Trooper indicated he could smell a moderate odor of intoxicants coming from inside the vehicle, . . . and [noted] that [Defendant’s] eyes were watery, bloodshot, and glassy. [“Defendant’s speech was not slurred.”] He requested that Defendant exit the vehicle and sit in his patrol vehicle. Defendant was cooperative and complied, accompanying Trooper to his patrol vehicle without difficulty. Trooper noted an open 25 fluid ounce can of Bud Light in the cup holder of the driver’s door pocket of Defendant’s vehicle. Trooper did no further investigation of the can and did not check to see if it was cold to the touch or if there was any liquid in the can. While seated in the patrol vehicle, Defendant stated, without being asked, that he had had a Blue Moon draft in a town at the next exit past Rolla at a bar in that town. He also told Trooper that he had been texting as an explanation for speeding, driving onto the left shoulder and not signaling when switching lanes. Trooper asked Defendant if he would perform field sobriety tests, and Defendant agreed to do so. Trooper performed the horizontal gaze nystagmus test. At trial, [the Director] stipulated that the Court should not consider the results of that test, and this Court therefore does not consider those results. Trooper then performed alphabet and reverse counting tests, and Defendant completed the alphabet test “perfect” according to Trooper and made no mistakes on the reverse counting test. Trooper next requested Defendant to submit to a preliminary breath test by blowing into a handheld portable breath testing instrument, and Defendant refused to do so stating he had been instructed not to blow into a portable breath test instrument by a friend who was a law enforcement officer. Trooper told Defendant that based on what he saw in his eyes during the horizontal gaze nystagmus test (which again [the Director] stipulated the results of which should not be considered by this Court) Defendant “was right there on the line” and if Defendant did not take the preliminary breath test, he would arrest him and take him to the next town and get a breath sample there. Defendant again refused to take the preliminary breath test.  Trooper then placed Defendant under arrest for driving while intoxicated and transported him to the Cuba Police Department. Trooper read Defendant his Implied Consent from the alcohol influence report, and Defendant agreed to submit to a breath test. Defendant performed the breath test using an Intox DMT Form # 11 [(“Blood Alcohol Test Report”)] shows that Defendant had a blood alcohol content of .125%.

Trial Court Ruling

The trial court concluded from these facts that there was not probable cause to arrest Defendant for driving while intoxicated, based upon the totality of the circumstances, and upon due consideration of all the evidence and considering the totality of the circumstances which includes evidence that weighs against reasonable grounds to believe Defendant was driving while intoxicated. Therefore, the Director (DOR) failed to meet its burden to prove by a preponderance of the evidence that Defendant was arrested upon probable cause to believe that he had committed an alcohol-related traffic offense. The Director then appealed claiming that the trial court misapplied the law because the historical facts found by the trial court establish probable cause as a matter of law

Defendant’s Argument and Court Reasoning

The Defendant argued there was plenty of evidence that weighed against reasonable grounds to believe Defendant was driving while intoxicated.  For example, Defendant’s innocent explanation to explain his behavior (i.e., speeding, and driving erratically because he was texting); Defendant’s failure to exhibit impaired physical movements (i.e., “no difficulty pulling over, providing his license and insurance information, following directions or maintaining balance as he exited his vehicle and walked to the trooper’s vehicle”); and Defendant’s proper performance of an “alphabet test and counting test.”

The Appellate Court analyzed that whether probable cause exists depends on information in the officer’s possession prior to the arrest. The court explained that there is no precise test for determining whether probable cause exists; rather it is based on the particular facts and circumstances of the individual case.

They went on to say referencing case law that probable cause is a “fluid concept” with no exact definition. It turns on the assessment of probabilities in particular factual contexts. Although there must be a “fair probability” that a particular offense has been committed, probable cause does not demand any showing that such a belief be correct or more likely true than false.

In this case, the trial court found the following facts occurred before Trooper arrested Defendant:

1. Trooper received a report that a vehicle was “tailgating and speeding” on Interstate 44. The report included a description of the vehicle and the vehicle’s license plate number. (Note: In Missouri, established law provides it is not necessary for the officer to observe the person driving the vehicle in order to create the requisite probable cause under Section 302.505.1. Rather, the officer may rely on information received from police dispatch or civilian witnesses.);

•  Less than ten minutes later, Trooper observed the vehicle traveling78 miles per hour in a 70 mile-per-hour zone, driving in the left lane while not passing, drive onto the left shoulder, and then move to the right lane without signaling;

• Defendant stopped the vehicle and provided his license and insurance without difficulty;

• Trooper could smell a moderate odor of intoxicants coming from inside    

          the vehicle” and Defendant’s eyes were watery, bloodshot, and glassy. Defendant’s speech

          was not slurred. Trooper also noted an open 25 fluid ounce can of Bud Light in the cup

          holder of the driver’s door pocket;

• Defendant was “cooperative” and accompanied Trooper to his patrol vehicle without  

difficulty;

• Without being asked, Defendant stated he had had a Blue Moon draft in a town at the next exit past Rolla at a bar;

7. He successfully performed alphabet and reverse counting tests; and

8. Defendant declined to submit to a preliminary breath test.

Appellate Court reasoned that these historical facts found by the trial court did establish probable cause as a matter of law because these facts would demonstrate to the senses of a prudent, cautious, and trained police officer a fair probability that Defendant was driving with an alcohol concentration in his blood, breath, or urine of .08% or more by weight.

The Appellate Courte went on to say that alternate innocent explanations for Defendant’s behavior and Trooper’s observations do not negate probable cause, but rather go to the ultimate issue of whether Defendant’s alcohol concentration in his blood, breath, or urine was .08% or more by weight.

The opinion emphasized that the fact that Defendant did not exhibit every indicia of intoxication does not negate the probative value in establishing probable cause of the indicia of intoxication that were present. The opinion also noted: 1) Third-party statements are in general admissible to establish probable cause, even though they are hearsay, and 2) Refusal to submit to a preliminary breath test is properly admissible on the issue of probable cause.

The trial court’s judgment was reversed and remanded with the direction to affirm the suspension of Defendant’s driving privileges.  Judge Nancy Steffen Rahmeyer wrote the opinion, with Judges Gary W. Lynch and William W. Francis, Jr. concurring.

Approaching police when drunk can get you a DWI

Recent case from the Missouri Court of Appeals, Southern District, holds that consensual contact with police can result in arrest and although a portable breath test (PBT) may not get used for proof of blood alcohol content (BAC) it can be used for proof of probable cause.

The Defendant argued the following on appeal: (1) the arresting officer had “no reasonable suspicion to detain” Defendant; (2) the arresting officer had “no reasonable suspicion to extend his nonconsensual detention” of Defendant; (3) there was “no probable cause to arrest” Defendant; (4) the Horizontal Gaze Nystagmus (HGN) test “should not have [been] admitted” because “the test was not performed properly”; and (5) the Portable Breath Test (PBT) “should not have [been] considered” because “law enforcement had wrongly assured [Defendant] the PBT would not be used against him[.]”  Finding no merit in any of these points, appellate court affirmed the lower court.

The opinion lays out that generally, there are three categories of police-citizen encounters: (1) a consensual encounter; (2) an investigative detention requiring only reasonable suspicion based upon specific articulable facts; and (3) an arrest requiring probable cause.

In this case, the driver consented to contact with police officer when driver pulled over in front of officer’s car to let passengers out.  Even without any suspicion of criminal activity, the Appellate Court said the officer was free to inquire of driver about those events and he did. It was at this point that the officer observed signs of the driver being intoxicated. This observation gave the officer reasonable suspicion of criminal activity that supported his investigative detention of the driver.

After the driver pulled himself over and two persons exited the vehicle, the officer who was sitting in his car behind them, exited his vehicle. He then heard the one of the passengers tell the other to get back into the vehicle, saying: “We’re both drunk, and we want to go home.” 

Officer ordered the two to get into their car, and he approached the driver. The driver stated his two passengers had been in an argument and that they had been drinking at a bar.

The Officer then observed (1) an immediate smell of intoxicants on Defendant’s breath; (2) Defendant’s eyes were glassy and bloodshot; and (3) Defendant’s “speech was a little bit slurred.”

When asked, the man admitted to drinking four drinks of Crown Royal and probably was over the legal limit.  The officer asked the man to do a PBT test but the driver wanted him to do field sobriety tests. The driver failed the FST and was asked again to blow for the PBT. The driver agreed and blew a 0.197, well over 0.08 legal limit.

The man was charged with a DWI and convicted.  The Appellate Court, on Point 1, held that there was sufficient evidence of intoxication by the observations and the failed FST tests the man took. Point 1 was denied.

The Defendant, as mentioned above on Point 5 of his appeal, argued it was improper to use the PBT for probable cause against him because it was wrongly obtained.  The officer gave the Defendant wrong information saying several times the results of the PBT can’t be used against him.

After the Officer conducted field sobriety tests, he again asked Defendant to take the PBT.  Here’s how the exchange with the officer went:

Officer 1:  “Let me ask you, will you take this PBT test for me real quick?”

 Defendant:  “I’m going to be totally transparent with you.  I think I’m a little over the legal limit….”

 Officer 1:  “Hey man, here’s the deal.  It was a simple yes or no question.  Like I said, it’s not admissible in court. … Will you take the test for me real quick?”

 Defendant:  “Yeah.” ….

 Other officer 2, after explaining how to take the PBT:  “It’s either positive for alcohol or negative for alcohol.”

 Defendant then complied and took the PBT.

The Defendant argued to the Appellate Court that the trial court should not have considered any evidence concerning, nor the results of, the PBT because the officers wrongly assured Defendant several times that the PBT would not be used against him and defendant relied upon those statements to his detriment.

However, the Appellate Court said that the officers’ statements were true and not a lie. PBT results cannot be used to show a blood alcohol content (BAC) level but they can be used to show probable cause to arrest or as exculpatory evidence.   The Court said they saw no evidence that the trial court used the PBT result to prove BAC level.  And the only reason the Defendant learned about what his PBT level was, was because he asked the officers for the information.  And finally, there was no need for the trial court to rely upon the PBT result because the breathalyzer result from the police station test established that Defendant’s blood-alcohol content was .139, which is above the .08 legal limit.

In summary, the PBT result was not used for proof of his BAC but it can be and was used for showing probable cause.  In the end, the lower court’s decision was affirmed on appeal.

Waiting to apply for reinstatement results in denial.

Here is an Eastern District Court of Appeals case where a man’s later felony conviction prevented him from getting his license reinstated.  The later felony conviction had occurred after his five-year DWI suspension had expired. However, Defendant did not apply for reinstatement at the 5 year mark and instead waited until 2019, almost 5 years later.

The trial court granted the man’s petition to reinstate his driver’s license which had been suspended for five years after he was convicted in 2009 for a DWI. 

The Department of Revenue (DOR), which regulates issuance of driver’s licenses, argued that the circuit court erred in reinstating the Defendant’s driving privileges because the man was convicted of possession of a controlled substance within the preceding five years of his petition being filed, and that based on statute it makes him ineligible for reinstatement. Specifically, the DOR cited Section 302.060.1(10). It states that there are no exceptions to the requirement that a petitioner for reinstatement not have been found guilty of an offense related to alcohol, controlled substances, or drugs during the preceding five years.

Unfortunately, for the Defendant he was found guilty of possession of a controlled substance eleven days prior to filing his petition for reinstatement.

Here’s how it went down. On October 24, 2015, the State charged Defendant with possession of a controlled substance and unlawful use of drug paraphernalia. Then he proceeded to get numerous continuances and he alleged abandonment by defense counsel stretching out the length of his new charges.  Then on April 5, 2019, he pleaded guilty to possession of a controlled substance.

He received a suspended imposition of sentence and was placed on supervised probation for five years. That same month, on April 16, 2019, he petitioned the circuit court to reinstate his driving privileges.   He argued that he was eligible for reinstatement on June 2, 2014, five years following the revocation of his driving privileges. He claimed in his petition that he “has not been convicted, pled guilty to or been found guilty of—and has no pending charges for—any offense related to alcohol, controlled substances or drugs and has no other alcohol-related enforcement contacts as defined in [S]ection 302.525 during the preceding five years.”

The case was simple with the appellate division holding that because the plain language of Section 302.060.1(10) requires a petitioner seeking reinstatement of his driving privileges to have not been found guilty of an offense related to alcohol, controlled substances, or drugs during the preceding five years, the circuit court erred in granting the man’s petition because no substantial evidence supported finding he was eligible for reinstatement under the statute.

Again, that was because the man had been found guilty of possession of controlled substances eleven days prior to filing his petition. Therefore, the circuit court erred in granting the man’s petition.

The opinion was written by Judge Kurt S. Odenwald, with Judges Philip M. Hess, P.J., and Lisa P. Page, concurring. The attorney for appellant was Eric W. McDonnell, while the attorney for the respondent was acting pro se.

Man gets DWI despite never being pulled over.

The Southern District held that the prosecutor’s mention of consuming 12 bottles of beer was not prejudicial, and that there was sufficient evidence for a reasonable juror to conclude the Defendant was guilty of a DWI, even if he was never pulled over in the act of driving.

That’s right. The man was not stopped by police. Testimonial evidence that he had consumed 13 bottles of beer presented at trial and that he got in his car and drove away was enough to show that he was driving while intoxicated. Even if there was no evidence of intoxication from a breathalyzer or from drawing his blood of his blood alcohol content.

Defendant appealed on two grounds. First, was that the Trial Court abused its discretion in deny his motion for judgment of acquittal because the State presented insufficient evidence for a reasonable juror to find him guilty of a charge beyond a reasonable doubt.

Defendant argued: “[i]t was impossible for a reasonable juror to find [Defendant] guilty based on the evidence presented at trial as the time interval between his last possible consumption of alcohol and his departure from the Casino dispelled any reasonable doubt that he was intoxicated.”  The timeline of consumption having occurred between 5:15 p.m. and 10:20 p.m., then with the Defendant driving off at 11:36 p.m.  A total time of a little over six hours since the consumption of the first beer.

The facts presented, and later observed on video, showed that the Defendant arrived at a Casino at 5:15 p.m. and ordered twelve 16-ounce bottles of beer. Video observation did not show that he spilled or poured out or gave away any of his drinks. Around 10:20 p.m., Defendant disputed with a dealer that he had waived off the dealer. Security was called in. Defendant was shown the video and Defendant conceded that he was wrong that he had in fact waived off the dealer. At this time, several witnesses, including a trained law enforcement officer, observed Defendant to be being argumentative, slurring his speech, and appearing red in the face. The man was escorted out of the casino and told he would have to get a ride home or wait several more hours before being able to drive home. Then the man left the casino. Two witnesses observed him not long before he got into his car and drove away as having glassy and bloodshot eyes, slurring his speech, swaying where he stood, and had an odor of intoxicants. 

When he got into his car, he entered the passenger side to be driven by another person but soon switched seats with that person and was observed driving away.  The next day the police officer on duty called the Defendant and told him he would be charged with a DWI. The trial court found him guilty of a DWI.

The State, according to law, proves a “person commits the crime of ‘driving while intoxicated’ if he operates a motor vehicle while in an intoxicated or drugged condition.”

The State argued they had enough circumstantial evidence of what the witnesses observed and what was show on video of him consuming the drinks to prove intoxication. Case law defines circumstantial evidence as “evidence that does not directly prove a fact but gives rise to a logical inference that the fact [exists].”   

While there were no blood test results or field-sobriety test results presented to show that Defendant was intoxicated when he drove, the testimony of two employee witnesses and a police officer on duty that night at the casino that Defendant obtained 13 alcoholic beverages in the hours before driving home is sufficient to give rise to the logical inference that fact was true.

The second ground of the appeal was that the state’s use of the phrase “12 bottles of beer” and lining up 12 actual bottle of beers in front of the jury during its closing arguments was a prejudicial error because the phrase misrepresented evidence admitted at trial and that it is probable that it affected the jury’s verdict. The appellate court held it was not.

The judgment of the trial court that the Defendant was guilty of a DWI was affirmed. The appellate opinion was written by Judge Colleen Dolan, with Judges Robert G. Dowd, Jr., and Lisa P. Page concurring.

New rules change how Missouri traffic tickets processed

Your ability to get your tickets taken care of by going through the Fine Collection Center in Jefferson City has changed and appears to be causing extra work for local counties at the circuit court level.

In the past, when the Missouri State Highway Patrol (MSHP) issued tickets for traffic violations, you were allowed to simply plead guilty and send your fine to the fine collection center (a.k.a. FCC) located in Jefferson City.

But if you wanted to fight the ticket the ticket offense would be sent to the circuit court level in the county where the offense occurred.

However, there was a recent en banc ruling by the court that effectively closed down the FCC by redirecting the process of all tickets to the local prosecuting attorney’s office and circuit court.

Some judges around the state have noted that this will likely increase the workload for local officials.

The change is part of a requirement that prosecutors have to first process the charge through an electronic e-filing system and sign off on the tickets.

Additionally, the Office of State Courts Administrator (OSCA) changed some of the rules on how some tickets are filed.  For example, tickets for driving without a valid license, no-insurance and speeding over 25 mph must now be filed as a criminal case.

Another problem with recent changes involves having citizens paying for tickets on-line. It’s not uncommon for a person to pay a ticket but enter the wrong ticket number. They then thereby pay the ticket and enter a guilty plea for someone else’s ticket. Then when that person who paid for someone else’s ticket finds out there is an outstanding ticket or warrant for them, they are confused. And the person whose ticket was paid for and entered a guilty plea, that person may have wanted to challenge the ticket or hire an attorney to amend the charge, only to find out there is a guilty plea now.

This confusion by allowing citizens to manually enter ticket numbers made more work for clerk staff to hunt down the person who made the mistake, refund their credit card, contact the other party involved, and change all the records.  

The changes to how state-issued citations are processed through the court system came from a Missouri Supreme Court ruling modifying Rules 37 and 38 and Court Operating Rule 21. The changes took effect May 1, 2019 and some courts are just now realizing the impact on their local circuit court systems.

Affirmed: Probable cause of intoxicated driver

It can be difficult to overcome probable cause to be pulled over for a DWI, at least that’s what one Lafayette County, Missouri, man learned.

He set out to appeal a circuit court judgment which sustained revocation of his driving privileges. He claimed the arresting officer did not have probable cause to believe he was driving intoxicated when he was pulled over for speeding.

The appellate court upheld the lower court’s decision when there was evidence the man had delayed pulling over without any good cause.  Furthermore, the court pointed out that the Defendant admitted to significant alcohol consumption; had difficulty walking and maintaining balance; had watery and bloodshot eyes; and the arresting officer testified that in his professional opinion he believed Defendant to be impaired.

The facts of the case are that on November 8, 2018, at 10:49 p.m., a law enforcement officer observed the Defendant driving 47 miles per hour in a 35.

When the officer approached him he detected a strong odor of alcohol on the man’s breath. When asked if he had consumed alcohol, the man replied: “[N]o, I spilled a beer on me.” The man later admitted to drinking four or five beers earlier in the evening at a local bar and that he was driving home from the bar when he was stopped.  The officer also stated that the driver’s pupils were constricted and his eyes were glassy, bloodshot, and watery.

The officer asked the Defendant to step out of his vehicle and to walk to the patrol car to sit in the front seat.

While walking, the man struggled “quite a bit” to walk, however, the officer noticed the man was significantly overweight. It was at this point that he was asked to submit to field sobriety tests, to which the man stated he had been through this before and that “he was not going to take any test because he could not pass them.” The officer arrested him on suspicion of driving while intoxicated.  He was taken to the police station where he refused to complete the complete any field sobriety tests.

He was then read the Implied Consent language from the form and was asked to take a breath test. The man refused. The officer gave him the correct documentation regarding revocation of his license.

The Defendant argued that he was not impaired from the consumption of alcohol at the time of his arrest. He pointed out that other than a brief delay in pulling over, the officer observed no signs of impaired driving while he observed the car in motion.

Nor were there observations of difficulty with motor skills in removing his license from his wallet and handing it to the officer.

The odor of alcohol was due to someone else spilling a beer on him.  And the reason he could not perform field sobriety tests was that his physical condition of being overweight. Even the officer’s report states that he was unsure if the difficulty in walking was from his weight or impairment.

He argued that he could not perform a breathalyzer because he has COPD and can’t blow hard enough for the machine to obtain a result. The officer also testified that there can be other reasons than alcohol as to why a person’s eyes are bloodshot or watery and that the Defendant was actually “speaking pretty well.”

The appellate court stated that all of this evidence would support the trial court reaching a different conclusion, but as noted in our standard of review, the court will consider all evidence consistent with the trial court’s judgment and disregard all contrary evidence.

The court in its discussion references case law: “‘Reasonable grounds’ is virtually synonymous with probable cause.”  Probable cause requires more than a mere suspicion of intoxication, but less than absolute certainty. Rain v. Dir. of Revenue, 46 S.W.3d 584, 588 (Mo. App. E.D. 2001). “Probable cause to arrest for driving while intoxicated exists when a police officer observes an unusual or illegal operation of a motor vehicle and observes indicia of intoxication upon coming into contact with the motorist.” Id. at 587. Missouri courts have found a combination of observations indicating intoxication are sufficient for a finding of probable cause. Id. at 588. Even absent field sobriety tests, probable cause is proven using other indicators of intoxication such as: an odor of alcohol, behaviors, mannerisms, and physical expressions.”

The appellate court held that the “indicia of Defendant’s delay in pulling over when there was no road condition that would have made pulling over difficult or dangerous; his watery, glassy, and bloodshot eyes; strong odor of alcohol; difficulty walking and maintaining balance; admission of significant alcohol consumption; and the officer’s testimony that, based on his knowledge of people impaired by alcohol in his professional and personal life, he believed the man was impaired by alcohol are sufficient to support a finding of probable cause to arrest the Defendant for driving while intoxicated.”  The lower court’s decision is affirmed.