Author Archives: wthornburg

Elements from prior out of state DWI not enough to charge a felony

If you have been charged with DWI, and you had prior DWIs in another state, you need to know that those previous guilty pleas cannot be used against you in some cases to enhance your penalty from a misdemeanor to a felony.

A recent case from Johnson County illustrated this point.

The Appellant Defendant was arrested for driving while intoxicated, and for driving while his license was revoked, following a traffic stop in 2016.

The State argued that Defendant was a “persistent offender” based on his convictions in 2005 and 2006 of two “intoxication-related traffic offenses” in Illinois. And based on his status as a “persistent offender,” the State alleged that the Defendant’s driving while intoxicated offense was enhanced from a class B misdemeanor to a class D felony.

At trial, the State presented evidence of his two Illinois convictions. Then the court found Defendant to be a persistent offender and convicted him of both driving while intoxicated (as a class D felony) and driving while revoked. 

The circuit court imposed a three-year sentence for the DWI conviction, but suspended the execution of the sentence and placed Defendant on probation for five years.  Defendant also was fined $250 fine for the driving while revoked count. The Defendant appealed.    

The argument the Defendant made was that his 2005 Illinois conviction does not qualify as an “intoxication-related traffic offense.”  That’s because the statute used to convict him made  it a crime to drive or be in actual physical control of a vehicle while “there [was] any amount of a drug . . . in [his] breath, blood or urine resulting from the unlawful use or consumption of cannabis . . .” 

Here is why this matters.  In Illinois, according to the Illinois Supreme Court, the offense of which the Defendant was convicted in 2005 did not require that he in fact be impaired by the presence of cannabis in his body.  But in Missouri, an individual can be convicted of driving under the influence of a drug only if that person is impaired by the drug. 

Therefore, logically, the Defendant’s 2005 Illinois offense did not contain all of the elements of the Missouri offenses of driving while intoxicated or driving under the influence of alcohol or drugs.  Therefore, the Defendant’s attorneys argued that the 2005 Illinois conviction lacked the most important element of impairment, and that the conviction cannot constitute an “intoxication-related traffic offense” within the meaning of Missouri’s § 577.023.1(4).

Now the State had a clever counter argument to that. They attempted to use extrinsic evidence of the offense such as from police reports and the officer’s testimony to try and show the Defendant was impaired. But the court was not having it, stating that considering facts beyond what was in evidence was inappropriate.

It is not appropriate, however, to consider facts beyond those actually underlying a prior conviction, to determine if the prior offense constitutes an “intoxication-related traffic offense.”

The Appellate Court ended up vacating the man’s Felony D conviction and remanded it to the circuit court to enter a conviction for DWI as a class B misdemeanor.

Opinion was written by Judge Alok Ahuja. 

An old expungement can’t be used to bar a second one

If you had your criminal record expunged, it can’t be used against you at a later date to bar you from getting a new criminal record expunged, according to a recent Western District Court of Appeals decision.

For those who don’t know, an expungement means restoring all rights as if the event had never occurred. Statutes governing expungement of arrest records require that the petitioner has no criminal convictions before or after the relevant arrest.  In this recent case, the Highway Patrol’s Central Repository was trying to block a person who had a prior conviction expunged from getting another expungement on a recent conviction.

The debate centered around the present tense of the verb “has.”  The word “has” instructs the court to look at the facts of the case as of the filing date of the petition for expungement. And if as of the filing date of the petition, if the person does not have a conviction because it had already been expunged at an earlier date, then the second conviction he wants expunged is counted as only a first-time conviction.

The appeal was brought by the Highway Patrol’s Central Repository, which according to state statute has standing to appeal a judgment adverse to the Central Repository in an action for expungement.  The Central Repository argued that because the defendant had a 2011 speeding conviction, he was statutorily ineligible for expungement of the arrest record, even though the speeding conviction had been expunged pursuant to section 610.140, RSMo. And because expungement of the defendant’s 2011 speeding conviction pursuant to section 610.140 restored him to the status he occupied prior to the conviction as if such conviction had never taken place, it was not legally erroneous to expunge the defendant’s 2016 arrest record.  

So the appellate court held that once the defendant’s 2011 misdemeanor speeding conviction was expunged, he no longer had a prior conviction for purposes of section 610.122.2(1).  The trial court, the appellate panel concluded, did not commit legal error by entering its judgment expunging the defendant’s 2016 arrest record and the trial court’s judgment is affirmed.       

The case was heard before Division One Presiding Judge Edward R. Ardini, Jr., and Judges Mark D. Pfeiffer and Cynthia L. Martin.

Sheriff Pension Fund court fee is in litigation

The controversy about a $3.00 assessed court fee continues to linger. The approximate $3 million generated from the fee goes to reimburse the Sheriff’s Retirement Fund fee. However, opponents of it say it may be unconstitutional.  Now the issue is being heard in court.

Columnist Tony Messenger of the St. Louis Post-Dispatch recently wrote an interesting piece on this controversy. This fee has been charged since 2013 by municipal courts, including traffic tickets in Missouri. However, the original statute from 1983 was only applied to the circuit court when it was originally introduced. And the law never changed since then. Yet municipal courts started to charge it.

Messenger says several big political players played some role in getting the fee established, including the following: Gov. Mike Parson; Former state Rep. Caleb Jones; Former Attorney General Chris Koster; and several of the sitting members of the current Missouri Supreme Court.

This issue with the Sheriff’s Retirement Fund fee came to light in 2008, according to testimony at a recent trial. That was when the stock market crashed, reducing the amounts in many pension fund portfolios.  That’s when the idea of applying the $3.00 fee to municipal cases was introduced.

Many sheriff employees throughout the state, particularly in rural areas, receive low wages and depend upon the fund’s pension to live off of after retirement.

To get the fee passed on through to the municipal courts to start charging it took a lot of political persuasion, and Messenger highlights it in his column.  Now, some judges and legal scholars are questioning whether the charge is constitutional because the sheriff’s department does not operate at the municipal level.

Messenger writes that this issue is a “small piece of a larger national pie, in which criminal justice reform advocates are pushing back at the persistent national crisis, the criminalization of poverty by stacking court costs and fines atop each other until they add up to real money.”

Stay tuned to see where this issue goes next.

Warrantless blood draw of DWI defendant upheld

The Eastern District of Missouri Court of Appeals upheld a first-degree manslaughter conviction involving a warrantless blood draw while Defendant was unconscious, in addition to allowing his statements into evidence despite possible evidence of a traumatic brain injury.

Defendant and friends had been drinking. Defendant was driving vehicle with his friends when the car slid off the road and overturned.  Officer arrived at scene and saw two in the vehicle. The two were transported to a hospital.  One of the occupants of the car died. Defendant was charged with first-degree involuntary manslaughter and second-degree assault. He was released to the St. Francois County jail after a lengthy stay in a rehabilitation center.

Law enforcement officer would later meet Defendant at the jail. Defendant gave conflicting reports about whether he was driving. Initially, Defendant told Officer the passenger was driving the van. He also stated, “It wasn’t me. I ain’t going to lie to you. I got nothing to hide.” However, he later said, “I think maybe I might have drove. I don’t know. I might be going nuts.” According to the Officer, Defendant seemed incoherent and confused.

At trial, the defense strongly disputed that Defendant was, in fact, driving the van the night of the accident. There was significant testimony presented, including accident reconstructionists for both the State and Defendant, as well as other fact witnesses who testified about potential evidence that Petty was actually driving that night. A jury convicted Defendant of both counts and he was sentenced to fifteen years in prison for each count, to be served concurrently. Defendant appealed his conviction.

Defendant appealed on three grounds, one of which was that his blood was withdrawn without a warrant. Defendant was discovered unconscious and bleeding outside the van involved in a single car accident. He was taken to the hospital and his blood was drawn while he remained unconscious. The officer had testified that he observed a “very strong odor” of intoxicants on Defendant.

Another passenger, who was still in the van at the scene, informed the officer that Defendant was driving and lost control, and that Defendant consumed four or five beers in addition to using methamphetamine that evening.

Appellate court said there was probable cause for the officer to believe Defendant was driving while intoxicated. The appellate court applied rationale used in another case, Mitchell v. Wisconsin, 139 S.Ct. 2525 (2019), and stated that a warrantless blood test while Defendant was unconscious did not violate his Fourth Amendment rights.  Therefore, the trial court did not err in admitting evidence of the blood test taken while Defendant was unconscious.

His second point on appeal involved whether the Defendant was cognitively impaired by a traumatic brain injury from the accident to have “knowingly and intelligently” waived his Fifth Amendment right to be free from self-incrimination. A person’s Miranda rights (or privilege against self incrimination) can be waived if the waiver is made voluntarily, knowingly, and intelligently.

Defendant here argued that his rights to be free from self-incrimination were violated when he spoke with a law enforcement officer; therefore, his statements should have been suppressed because of his injuries.

The Court, however, stated there is no prohibition against a seriously injured suspect making a voluntary statement or confession unless there is evidence to indicate he did not fully understand the subject matter of the conversation.  Citing the case of Harris v. State, 475 S.W.3d 227, 231 (Mo. App. W.D. 2015), the Appellate Court stated a defendant must demonstrate his injuries were so significant as to overcome his will to resist questioning in order to justify suppression of statements made during such questioning.

The Court looked at the evidence in the case.  During the suppression hearing, the law enforcement officer testified he advised Defendant of his Miranda rights and that Defendant did not subsequently request counsel. Furthermore, Defendant continued to speak freely with officer, nor did he refuse to make a statement following his Miranda warnings.

Now this is interesting. The officer testified Defendant seemed confused and incoherent at times during their discussion. And that he made several random statements unrelated to the accident and whether he was driving. However, the Appellate Court reasoned that this did not establish Defendant was injured to the extent his will to resist questioning was overcome.  The Court saw that the record actually shows that Defendant requested to speak to the officer about the accident and voluntarily provided the officer with information about his role in it. Bottom line, the trial court did not err in denying Defendant’s motion to suppress his statements to the officer, the Appellate Court wrote.

The opinion was written by Judge Lisa P. Page, J. with Judges Colleen Dolan, Roy L. Richter, J., concurring

Trial de novo is not an appeal

Defendant in this Clay County case thought her due process rights had been violated at her administrative hearing with the Department of Revenue. The DOR won and the Defendant had her driving privileges suspended. So she had the case reviewed by the trial court which refused to consider the issues of due process rights. Defendant appealed that decision and the appellate court affirmed the trial court’s decision.

This all began after the Defendant lost her administrative case to the DOR. The Defendant sought what is called a de novo review at the trial court level. And it was at this level that the trial court said it did not have the authority to hear and determine due process violations that allegedly took place at the administrative hearing.  

So the Defendant appealed and the Missouri Court of Appeals, Western District went on to affirm and uphold the trial court’s decision saying the trial court in a de novo review does not have to consider due process issues.

The appellate court reasoned that a trial de novo is an original proceeding and is not designed or intended to review the underlying administrative proceeding for alleged errors. 

Therefore, any challenges alleging due process violations emanating from the administrative hearing are outside the scope of the trial court’s statutory charge in a trial de novo. The reason being that a trial de novo is a new judicial proceeding that is unfettered by factual findings or legal conclusions rendered in an administrative tribunal.  By making this holding, the Defendant’s driving privileges were ultimately denied.

The Defendant filed a motion for summary judgment asking the trial court to set aside the suspension of her license because the administrative hearing officer who presided over the administrative hearing violated her due process rights to a fair, impartial, and meaningful hearing conducted by a neutral hearing officer. She argued that her rights to due process were violated in two ways:

First of all, the hearing officer after learning from an unidentified clerk that the Director of Revenue’s file did not contain a complete maintenance report, notified a member of his support staff of the deficiency, and the member of his support staff then obtained a complete copy of the maintenance report from the Missouri Department of Health and Senior Services’ website and supplemented the Director of Revenue’s file with it.

The second alleged violation came after the Defendant objected and the hearing officer allowed the complete maintenance report to be admitted into evidence. The hearing officer then ruled that a breath test, which determined the Defendant’s blood-alcohol concentration was in excess of the legal limit, was performed using properly functioning equipment by a licensed person.

The case was heard before Division One Judge Cynthia L. Martin, Presiding Judge, and Judges Alok Ahuja and Anthony Rex Gabbert.

Rolla updates its law to allow medical cannabis

The City of Rolla, Missouri, is on its way to passing an ordinance that will no longer conflict with recent medical marijuana possession.

The city held its first reading of an ordinance that will amend the city code to allow medicinal marijuana. Under current city law, possession of 35 grams or less of marijuana is illegal with no exception for medical marijuana applicants approved by the state for legal possession.

The proposed ordinance was drafted after Rolla Police Chief Sean Fagan notified the city that the marijuana possession law on the books doesn’t allow medical marijuana.

This new ordinance amends Rolla’s cannabis possession law with language making it an exception for individuals who have patient or caregiver medical cannabis cards approved by Missouri’s Department of Health.  The Missouri’s Department of Health has approved more than 10,000 patient and caregiver applications already. The new statewide medical cannabis laws are expected to go into effect early next year.

Rolla’s current possession law makes possession of 35 grams or less of marijuana or possession of drug paraphernalia a criminal misdemeanor. Punishment can be a maximum fine of $500, a maximum prison sentence of 90 days, or punishable by both a fine and imprisonment.

Having the possession laws soon to be tweaked does not address the use of equipment used to plant, cultivate and harvest as part of a manufacturing industry of marijuana. To do so conflicts with drug paraphernalia laws. So any prospective business owners wanting to grow, manufacture and sell medical cannabis in the city’s limits will have problems.

To address the issue, Rolla has already reached a memorandum of understanding with a Denver based company to open a cultivation facility within city limits. This assumes the company is awarded an operating license.

Richmond Heights Municipal Court

Located in St. Louis County

Richmond Heights Municipal Court
Laurie Beeko, Court Clerk
7447 Dale Ave
St. Louis County, MO 63117
(314) 645-1982 ext 3
(314) 655-3546 (facsimile)

Municipal Judge
Hon. Stephen O’Brien

John Lally, Esq.

Court Dates and Docket Dates
Doors open at 5:30 on Court dates, Court begins at 6:00pm. There are 3 court sessions each month.

In 2017, the Municipality of Richmond Heights filed over 948 tickets. Did you get a ticket in the municipality of Richmond Heights? What should you do?

If you received a moving violation you have 3 options:

1. Pay it
2. Go to court and try to fight it yourself
3. Hire an attorney.

If you pay it, there will be points assessed to your license. This can cause your insurance rates to go up and/or cause your license to be suspended. Eight points in 18 months can result in a license suspension.

If you try to fight it yourself, the first time you appear in court, your case will not be heard. You will be required to wait and then stand in front of the judge to plead guilty or not guilty. If you plead not guilty, the judge will set your case for trial and you will have to come back at another date. Taking care of the ticket yourself will result in at least two court appearances taking upwards of an hour a piece. Then if you lose, you will be required to pay the fine anyway.

If you hire an attorney, you will likely avoid the appearance and our goal is to get your moving violation amended to a non-moving violation. We have worked in the Richmond Heights Municipal Court for over 15 years. We work with the prosecuting attorney to get your ticket reduced. We then notify you via email and hard copy and all you have to do is mail in your payment. Usually this process requires no appearance in court on your part saving you time and energy. For a free consultation, fill out our easy ticket submission form and one of our attorneys will contact you.

Richmond Heights MIP Defense

• Our Richmond Heights MIP lawyers handle MIP defense, where the object is keeping your record clean and your driver license from being suspended

Richmond Heights DWI Defense

• Our Richmond Heights DWI attorneys handle drunk driving defense, where your driver license and your freedom are at stake.

Let our Richmond Heights Traffic Lawyers start helping you today. Contact Us

Richmond Heights Traffic Court Information

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The meaning of ‘driving’ plays role in DWI appeal

The Director of Revenue (Director) appealed the judgment of the trial court in favor of Respondent (Defendant), which reinstated Defendant’s license because it found the Director failed to establish there was probable cause to believe the Defendant operated his vehicle while intoxicated.  The Director argued the trial court erroneously applied Missouri law regarding what constitutes “driving.”  

 The appellate court said that the Missouri Supreme Court has held that “the bright-line test to operate a car [is] caus[ing] its motor to function.  Once the key is in the ignition, and the engine is running, an officer may have probable cause to believe that the person sitting behind the steering wheel is operating the vehicle[,] even if that person is sleeping or unconscious.”  Cox v. Director of Revenue, 98 S.W.3d 548, 550 (Mo. banc 2003).

In the case at hand, Defendant was found passed out in a running car, which was unusually parked.  Also, the trial court found the officer had probable cause to believe the Defendant was intoxicated when found.  The appellate court found that the trial court erroneously applied the law when, in order to find Defendant operated the vehicle while intoxicated, the court indicated it required evidence of Defendant’s intoxication one hour prior, when Defendant drove the car.  Such a standard of proof renders the statute’s inclusion of the term “operation” meaningless, and we decline to interpret Section 577.041 in such manner.  The undisputed facts that Defendant was in the driver’s seat of a running car that he had driven there, along with the trial court’s finding that probable cause existed of Defendant’s intoxication at the time Sergeant Joseph Renkenmeyer encountered him, constitute substantial evidence supporting a finding of probable cause to believe Defendant operated the vehicle while intoxicated.”

It is important to note that in its footnote, the appellate court stated that although it made this decision today, nevertheless they can envision situations in which the circumstances of an intoxicated person seated in a running vehicle…will not merit a reasonable inference that the person was operating the vehicle while intoxicated.   Cox suggests that it is necessary to take into account more than the technical facts of the car running with an intoxicated peso inside in the determination of probable cause, and courts will continue to do so on a case-by-case basis.

The appellate court directed the trial court to sustain the revocation of Defendant’s license upon remand.   The opinion was written by Justice Gary M. Gaertner, Jr., with Presiding Justice Kurt S. Odenwald and Justice Colleen Dolan concurring.

 Attorneys for Appellant were Eric S. Schmitt and Daniel N. McPherson.  Attorney for Respondent were Denise L. Childress and Carl M. Ward.

Law tougher on drivers who hit a first responder

A recently signed new law will make it more financially painful for drivers who hit a first responder pulled over on the side of the road.

The law is called Lyndon’s Law. It can mean losing your license for hitting a worker or responder working along the side of the road.  The law was named after MoDot employee Lyndon Ebker, who was hit and killed in Franklin County, Mo in 2016

Before the new law, a driver was charged with endangerment of a highway or emergency worker if they were hit but not injured.  If the worker was injured or killed, they would be charged with aggravated endangerment of a highway or emergency worker. The penalty for the latter charge was 12 points on your license, which would be a suspension, and a significant fine.

Under Lyndon’s Law, the penalty now applied to a responder or worker injured or killed will apply even if the responder or worker is just hit without an injury.  Furthermore, it requires a driver to pass both the written and driving parts of the driver’s exam before their license can be restored.

The hope is that this law will act as a further deterrent and make drivers more cautious as they enter a work zone or scene where first responders are operating.