Author Archives: wthornburg

Argument of error of breath testing machine fails

Defendant argued before the Western District Court of Appeals that the breath test results used to suspend his license were not admissible because the breath testing machine was not subjected to proper maintenance and reporting.  In the end, his suspension from Lafayette County is upheld and judgment affirmed. 

The issue centered around 19 C.S.R. 25-30.031(3) which states maintenance checks shall be completed when a new instrument is placed into service or when the instrument has been serviced, repaired, or recalibrated.  And in this case, was it an error to complete a maintenance check when an instrument was serviced and sometime thereafter a separate maintenance check of the instrument was done when the instrument was placed back into service?

To admit blood alcohol test results the following foundation requirements must be met: (1) the test was performed by following the approved techniques and methods of the Department of Health; (2) the operator held a valid permit; and (3) the equipment and devices were approved by the Department.

 The Defendant was arrested for DWI and transported to the Ray County Sheriff’s Department.  After being advised of the implied consent law, Defendant agreed to submit to a breath test of his blood alcohol level. 

The breath test was performed using the Intox DMT, Serial Number 500052, and was administered by a State Trooper, who possessed a Type III permit authorizing him to operate the Intox DMT.  The breath test indicated that Defendant’s blood alcohol content (BAC) was .187 percent.  The Trooper followed the steps contained in the operational checklist; certified that there was no deviation from the procedures approved by the Department of Health and Senior Services; and determined that (to the best of his knowledge) the instrument was functioning properly.  

According to the facts of the case, the Intox DMT was used to administer Defendant’s breath test, had been previously transported to Jefferson City, Missouri, where it was upgraded by replacement of its dry gas regulator.  A trained person, who possessed a Type II Permit, replaced the regulator, adjusted the settings, and conducted a maintenance check of the machine on April 24, 2018.   In his April 24, 2018 maintenance report, the person noted:  “Standard change performed. Dry Gas regulator replaced, and settings adjusted.  Stepper motor tension adjusted.”    

The machine was then transported back to the Ray County Jail.   The Trooper at the jail, who also possessed a Type II Permit, conducted a maintenance check on the machine the next day. The instrument was tested and certified as operating in compliance with Department regulations. 

Trooper testified that he did not make any alterations or modification to the instrument in conducting his maintenance check and therefore did not note any alterations to the machine.  He merely placed the instrument back in service, and indicated:  “Return to Service @ Ray Co Jail.”    

The maintenance on the breath test instrument was properly performed within 35 days prior to the test of Defendant’s breath.  The trial court concluded that the breath test result was accurate, reliable, and valid, and sustained the revocation of Defendant’s driving privilege.  For all the reasons above, the Western District appellate court agreed and affirmed the decision.

Opinion was written by Thomas N. Chapman, Presiding Judge, and also heard before Division One Judges Pfeiffer and Gabbert.

Implied consent law was triggered in DWI case

We have yet another case where a driver who admits to having driven the car he was found parked in and visibly intoxicated is trying to argue that there was insufficient proof that he had used a public roadway; therefore, there was no implied consent to chemical testing.

Why is implied consent important? Refusal to submit to chemical testing is not valid for the purposes of revoking a driver’s license unless the driver has impliedly consented to chemical testing.  Pursuant to section 577.020, consent to submit to chemical testing cannot be implied unless the evidence supports an inference that a driver operated a vehicle on the public highways in Missouri.

The defendant’s argument before the Western District Court of Appeals essentially was that refusal to submit to a chemical test is not valid unless it is established that a driver impliedly consented to submit to chemical testing by “operat[ing] a vehicle upon the public highways of this state” as provided in section 577.020.1(1).  The appellate court stated that no Missouri case has directly addressed whether a valid refusal to submit requires proof that the driver was or had operated a vehicle upon the state’s public highways.  However, the appellate court stated there were two Missouri cases that indirectly addressed the subject.  

Ultimately the appellate court reasoned that the implied consent was given upon filling out an application for a license and the subsequent issuing of the license to the driver.  Furthermore, if that were not enough, there was sufficient evidence on the record to show that the defendant had been using public roads.

The defendant was found in the driver’s seat of a running vehicle which was parked in the parking lot of a fast-food restaurant.  The vehicle was registered to the Defendant, and the Defendant was the vehicle’s only occupant.  The Defendant also told the responding officer he arrived at the Taco Bell from his home.  The appellate court found based on these reasons that there was enough evidence of implied consent and that the Director of Revenue’s decision would be affirmed.

The appeal was heard in the Western District by Judges Zel M. Fischer, Cynthia L. Martin, and Gary D. Witt. Martin wrote the opinion.

MO traffic fatalities down for third year in row

MO traffic fatalities down for third year in row

Description: Missouri related traffic deaths are down five percent for 2019, representing the third year in a row that traffic fatalities have declined.

Good news. Missouri traffic deaths are down five percent for 2019, making it a decline for the third year in row. The Missouri State Highway Patrol reported that 876 lives were lost in traffic crashes in 2019, down from 921 in 2018.

The MoDOT tempered its good news with the fact that 876 lives is still too much, with their ultimate goal to be zero traffic fatalities.

Statistics, however, did see an increase in motorcycle fatalities and pedestrian fatalities. In 2019, there were 118 motorcyclists killed, a 10 percent increase from the previous year. As for pedestrians, there were 108 pedestrians killed in 2019, making it the largest number of pedestrian fatalities in Missouri in the last 10 years.

Outside of weather and road conditions, the main factors contributing to deaths are driver recklessness and poor judgment. They include driving too fast, impairment, distraction, and the lack of using seat belts.

Many of these deaths are avoidable and require good decision making as drivers and pedestrians to prevent them.

MoDOT suggests taking the following steps to prevent fatal accidents:

• Always wear a seat belt and use appropriate child safety seats.

• Never drive impaired. Always arrange for a designated driver.

• Never drive distracted. Put your cell phone down.

• Obey the speed limit and other traffic laws.

• If riding a motorcycle or bicycle, always wear a helmet and other protective gear.

Another thought would be, plan to leave 15 minutes earlier than normal. This prevents you from always having to be in a rush. A slogan to be aware of when driving and to teach young children when you get into a car is “Buckle Up; Phone Down.”

Intoxicated man gets DWI driving ATV on public road

This case goes to show that driving an ATV on a public road makes it a vehicle and if you are intoxicated, it can get you jammed up for a DWI

That was the situation for a driver in the Southern District of Missouri who found himself riding his ATV on a public road. An ATV is not normally considered a “motor vehicle” if being driven in a field or on a farm away from publicly travelled roads. But once the ATV uses a “thoroughfare or a way for travel” used by the public, the ATV becomes a motor vehicle for the sake of DWI laws.

In this case, a teenager (“Victim”) wearing music head phones was walking his dog at night

through a residential subdivision on graveled, unlighted path (The “Road”).  It was at that moment when the Defendant was driving his ATV without operable headlights, struck the Victim and knocking his body 54 feet.

Defendant fell off the ATV.  The ATV had tipped over with beer cans scattering to the ground. Victim’s parents rushed out of their house to find Victim unconscious, blood pooling under his head. Standing over him was Defendant, smelling of alcohol, pushing Victim and telling him to get up. Victim’s parents checked for a pulse and called 911.

Defendant did not want the parents to call 911 stating that he “didn’t want the cops there.” Defendant picked up the beer cans, then tried to move the ATV and leave, but Victim’s father convinced him to stay put.

A trooper arrived, also smelled alcohol on Defendant’s breath, heard his slurred speech, observed his blank stare, and administered three field-sobriety tests which he failed.  The trooper determined that Defendant was intoxicated and arrested him for DWI. Trooper advised him of the implied-consent law and requested a blood draw. Defendant refused. Defendant told the trooper that he was driving the ATV and hit the Victim, and later admitted at a license revocation hearing, on oath, that he was drinking and driving that night.

The prosecutor charged Defendant as a persistent offender, with class E felony DWI, alleging that he acted with criminal negligence by operating a motor vehicle at night without a headlight, injuring Victim. A jury convicted Defendant, and he now appeals.

Defendant argued that he cannot be guilty of DWI because an ATV is not a “vehicle” or “motor vehicle” and the Road is not a highway or public roadway. However, the appellate court found that his reliance on State v. Slavens, 375 S.W.3d 915 (Mo.App. 2012) is misplaced because Defendant was not, for example, riding a dirt bike or lawn mower in his own yard, or a golf cart on a privately-owned golf course. Instead Defendant drove an ATV in a residential subdivision on a gravel road open to and used by the public and emergency vehicles. “[A]ny street, if designated as a thoroughfare or a way for travel, is understood to be a public roadway.” Gittemeier, 400 S.W.3d at 844. “Regardless of type of motorized device, if a person drives a non-traditional vehicle on a public road, such use can render that vehicle a ‘motor vehicle.’” Id. “Because [Defendant] drove his ATV on a road open to the public, he created a ‘clear hazard to the traveling public.’”

The appellate court affirmed the conviction by finding criminal negligence.  The appellate court stated that any “thoroughfare or a way for travel” is a public road, and driving an ATV on a public road can make the ATV a motor vehicle. Appellant was intoxicated while driving an ATV on a gravel road used by the public and by emergency vehicles in a residential subdivision. Those facts supported a finding of driving while intoxicated. Driving fast on a dark road with no headlights supported a finding of criminal negligence.

No printout does not rule out Breathalyzer results

A technical glitch in a breathalyzer machine, as long as it didn’t impair the results of the test, is not enough to throw out the blood alcohol content (BAC) result showing intoxication over the limit, according to the appellate court in the Eastern District of Missouri.

In a recent case where a driver’s license was suspended, the court was asked to determine whether the results of a BAC breathalyzer test are admissible.  In that case, the printer connected to the machine lost power before it could print a ticket. The lower circuit court judge determined the results were inadmissible and therefore reinstated the defendant’s driving privileges.

The Director of Revenue appealed the judgment of the circuit court which concluded that the Director failed to make a prima facie case for the suspension of the defendant’s driver’s license.

The actual finding of the court was that although the breathalyzer test given to Defendant showed his blood alcohol level exceeded the legal limit, the officer failed to strictly comply with the operational checklist set forth in the statute. The reason was that the printer lost power, resulting in inadmissible and unreliable test results, per se. In this case, the BAC machine was operating on battery power at the time of the test. The machine then lost power prior to printing out the results. The officer quickly plugged the machine in. Then the machine printed the results. No argument was made indicating the officer had erroneously performed the test.

The DOR argues that the circuit court erroneously applied the law in excluding the test

results because there was no evidence the machine malfunctioned or that the digital readout

showing the BAC was over the limit (0.124%) was not accurate.

The appellate court reversed and remanded the decision, holding that the law was misapplied by excluding the results for failure to strictly comply with the printing requirement as outlined in the statute.

This Court went on to say that the appellate court has consistently held that the failure to strictly comply with the procedural requirements of breathalyzer testing does not always warrant the exclusion of breathalyzer test results where there has been “substantive compliance”with the rules promulgated by the Department of Health. The court pointed out the case of  Shine v. Dir. of Revenue, 807 S.W.2d 160, 162-63 (Mo.App.E.D. 1991)

In the Shine case, there was reversible error by excluding test results where arresting officer failed to comply with “literal procedural requirements” of operational checklist but there was “substantive compliance” with the rules. The court references Tomkins v.McNeil, 782 S.W.2d 400, 401-02 (Mo.App.W.D. 1989), stating that Missouri courts have held that even where steps in the operational checklist require test results be printed out, a printout is not required for admission of the test results if there had been substantive compliance with the rules.

Mo. Gov. wants money for roads, bridges

Looks like Missouri might be getting some new road and bridge improvements.

Gov. Mike Parson wants state lawmakers to fund another year for a program that helped cities and counties with infrastructure improvements for roads and bridges.

The governor pointed out that the program lawmakers passed last year was a legislative success and it should be funded again for this year. The governor was speaking at a meeting of the Missouri Asphalt and Pavement Association.

That deal included $50 million in matching state funds for cities and counties that share the cost of improving their roads and bridges.

More details on the dollar amount are expected in Parson’s State of the State speech.

In December, the governor’s office announced $50 million in matching state funds for some 20 projects.  This would amount to a total of $131 million in upgrades to roads, bridges and intersections.

Last year’s deal saw the matching funds come from the state’s general fund, rather than from fuel taxes.  The program came after voters rejected in November 2018 an increase to the state’s 17-cent fuel tax.

Neither the governor nor the legislature seems to want to push for a tax increase this year.  However, one senator has filed legislation to increase the gas tax by 2 cents. Diesel taxes would go up 6 cents. Neither increase would be put under the public’s vote with a question on the ballot.  There are a few other Democrats in the House who have filed bills to increase the fuel tax.

Jury doesn’t believe story witness was driving

A man was found guilty of driving while intoxicated by a Maries County jury.  The jury felt that there was enough evidence to support a DWI conviction.

In this Southern District of Missouri appellate case, the appellate court stated that a jury may believe all, some, or none, of any witness’s testimony. The testimony of the Defendant’s girlfriend was that she was doing the driving while he was sick and laying down in the car.  The man appealed his DWI conviction. Appellant argued that although there was evidence of his intoxication six hours after his car was seen, there was not sufficient evidence that he was driving at the time that he was intoxicated.

However, the following evidence as listed out in the Appellate Court’s opinion tells another story that was more believable for the jury:

*There was a 12-pack of beer in Appellant’s fridge and he “drank before [he] left” in his truck with his girlfriend.  (Appellant’s girlfriend)

*Appellant and his girlfriend got into Appellant’s truck by approximately 6:30 p.m.  (Appellant’s girlfriend and Sheriff’s deputy)

*The truck was observed traveling 85 mph and was chased by a Maries County Sheriff’s deputy.  The truck sped down highways and private roads with the deputy going 100 mph to try to catch it.  The truck went into a field and failed to come out the gate from the field.  (Sheriff’s deputy)

*The truck passed the farm owner who observed it traveling at a high rate of speed on his private road at approximately 6:45 p.m.  (Witness Breeding)

*The officer searched by foot and located tire tracks along a creek.  He followed the tracks and found the truck resting “nose first” in an overgrown cluster of willow trees.  The truck’s doors were locked and the hood was “warm to the touch.”  The truck had been driven over some rocks and logs and was immovable.  (Sheriff’s deputy and Witness Breeding)

*The truck was traced to Appellant’s mother.  The Sheriff called Appellant’s phone around 8 p.m. and left a voice mail message stating that police were looking for him.  (Sheriff’s deputy and Sheriff)

*Appellant returned the call twenty to twenty-five minutes later, identified himself and said they “were only going to be able to get him for speeding and maybe driving without a license.”  (Sheriff)

*Appellant became more agitated during the call and began yelling; his speech was slurred.  When asked if he had been drinking, Appellant replied, “Yes, earlier, but not while driving” and “I’m not even that drunk.”  Appellant told the Sheriff he was lost in the woods and did not know where he was; Appellant agreed to turn himself in when Appellant found a mailbox number on the road and told the Sheriff.  The Sheriff stayed on the phone with Appellant until he heard officers arresting him.  (Sheriff)

*Appellant’s shirt was ripped, he had abrasions on his legs and dirt and mud on his face; he had a cell phone and set of vehicle keys in his pocket.  (Sheriff’s deputy and Lieutenant)

*Appellant smelled of intoxicants, his speech was slurred, and he had to be held up because he was swaying.  (Lieutenant)

*The keys found in Appellant’s pocket opened the pickup truck found in the field.  (Lieutenant) 

*After obtaining a search warrant, Appellant’s blood was drawn.  The first blood draw was .123% and the second was .120%.  (Criminalist)

After all these facts, Appellant still wanted the jury to believe that he was not driving. But the jury has the right to believe or not believe all, some, or none of the girlfriend’s testimony.

The jury was presented evidence that appellant was driving (remember Appellant’s admission to officer that the only thing they would get him on was speeding and maybe driving without a license). They also were told that he had consumed alcohol before driving and had a blood alcohol content of 0.123 percent six hours after driving.  Then there no evidence was presented that appellant consumed alcohol after driving.

The Appellate Court basically felt a jury could find that appellant was intoxicated while appellant was driving based on these facts. And a jury did not have to believe testimony of a witness that she was driving. Therefore, her testimony does not change his conviction.

The conviction was affirmed. Judge Nancy Steffen Rahmeyer wrote the opinion, with Judges Gary W. Lynch, P.J., and William W. Francis, Jr., concurring.

Proposed Bill to block CaseNet access to misdemeanor crimes

There is a new proposed bill that would limit the public’s access to CaseNet as a move to protect the privacy of Missourians.

For those who don’t know, CaseNet is Missouri’s online database which allows the general public to search most court records, exceptions include juvenile records and paternity cases.

The searches will provide information on docket entries to judgments, charges, court dates, appearances, names of lawyers and prosecutor’s on those cases, the defendant’s name and date of birth, etc. This information is recorded when clerks and lawyers make filing and updates utilizing the Missouri Court Automation Program’s case management software.

The politician behind the movement to close some of the public’s online access to information is Rep. Bruce DeGroot.

DeGroot recently filed legislation to prevent nonviolent misdemeanor and traffic offenses from being publicly available. However, that information would still be accessible by law enforcement agencies, judges, prosecutors, defense attorneys, court personnel.

DeGroot attempted last year to remove misdemeanor cases from CaseNet after five years have passed. Then it was realized that there is software that can be purchased to find that information even after five years. That bill was stalled in the judiciary committee in the house of representatives.

So this new bill would block minor crimes such as minor traffic tickets, minor in possession of alcohol and marijuana charges that could later be available to future employers to deny a job, or a nosy neighbor or classmate to use for personal reasons to harass former defendants.

DeGroot is the same representative who helped promote legislation that took away some forms of punishment against people who could not afford to pay their initial fines and court costs, leading to an unbreakable cycle.

We will have to wait to see if this new bill will gain any traction. Stay tuned to our blog.

AG sues Marshfield for issuing too many tickets

The St. Louis community is not the only place that has raised red flags when it comes to issuing too many traffic tickets.  The state attorney general has filed a lawsuit against the City of Marshfield for doing just that.

AG Eric Schmitt announced a lawsuit in early December against the city of Marshfield for enforcing a ticket quota on police officers. The suit also alleges that the town’s police chief attempted to intimidate potential whistleblowers.

The suit says that the police chief began in January 2019 posting monthly citation numbers on a department bulletin board and stopped after the city of Diamond, Missouri was sued for illegally putting ticket quotas on officers.

The suit outlines that if an officer wrote less than 16 tickets in a month, they would have to face the Chief to discuss performance issues.

To support the lawsuit, the AG states that citations from officers increased from 383 in 2016 to 1,386 in 2018. Warnings from officers fell from 982 to 767 in the same time period; and the number of highway stops in the same time period went from zero to 241.

In response, the City of Marshfield says the lawsuit is meritless, and that the increase in tickets can be directly attributed to the City hiring additional officers in each of the last two years as their community grew in size. Also, it noted that radar guns were added in March 2018 to all police vehicle whereas only one had a radar gun prior to that.