Author Archives: wthornburg

City of Diamond settles suit over its traffic ticket policy

Changes to how Missouri municipals conduct their traffic ticket policy continues to move forward. Most recently the City of Diamond agreed to stop its practice that critics said was the using of traffic ticket quotas to generate revenue. The decision was part of a settlement announced by the state’s attorney general last recently.

Additionally, the city agreed to mandatory training for top city officials on compliance with Missouri laws against traffic quotas.

The City of Diamond had been sued by Attorney General Eric Schmitt in April 2019.  The allegations were that the City’s Police Chief wrote on a white board that the city was $5,000 behind and instructed officers to issue tickets “RFN.”

Schmitt’s Office alleged in the lawsuit that a whistleblower said RFN is an acronym for a phrase that means immediately, The lawsuit also contended that the police chief sent the town’s mayor and Board of Aldermen regular updates on how many tickets each officer had written up.

The settlement also implements a $100 fine for every day of noncompliance.

Missouri has banned the use of ticket quotas following protests in Ferguson over the 2014 fatal police shooting of Michael Brown. Although Brown’s shooting didn’t involve a traffic stop his death led to violent protesting, which highlighted concerns about how police had been boosting revenue with traffic fines and court costs among predominantly black residents of St. Louis suburbs.

Intoxication not a mental condition

A recent appellate decision out of Kansas City ruled to reject a defendant’s argument that intoxication qualified as a mental condition and therefore exclude testimony regarding her intoxicated state. The court ruled intoxication is a physical condition not mental.

The defendant based her appeal upon the argument that the Cole County judge allowed three witnesses to testify about defendant’s intoxication despite a change in state law approved earlier in the year by the legislature.

The defendant was arrested on December 15, 2015 by Jefferson City police.

The police officer observed the defendant stopped at a green light in the fast lane of traffic with her high beams on.  She did not dim them for approaching vehicles when she started to drive.  The officer followed the defendant’s car and saw her turn her headlights off while driving. The car also wove back and forth in its lane. The officer turned on his emergency lights to stop the defendant but she did not stop. He then turned the siren on. The defendant continued to drive, nearly hit another car. Eventually she stopped in her lane, although there were places to pull off the road.

When she got out of the car, she failed to put the car in park and it started rolling.  When the officer told her to put the car in park she appeared confused.  He then conducted field sobriety tests and arrested her for DWI. The officer searched her vehicle and person and found a pill later determined to be a depressant called lorazepam.  He then administered a breath test which showed her to have a blood-alcohol content of 0.075 percent, which was just below the legal level of intoxication in Missouri.

However, a separate blood test showed the defendant also had lorazepam in her system. A Highway Patrol witness testified at the trial that at the levels observed, in combination with alcohol, the drug would enhance symptoms of ‘drowsiness, dizziness, difficulties with coordination, confusion and divided-attention tasks.”

Now the arrest was in December 2015, but the trial occurred in November 2017, which was after lawmakers had changed the state’s law on who is an “expert” witness and what that person can and cannot testify to during a trial.

This 2017 law said that in a criminal case, an “expert witness shall not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense.” These matters of mental state are for the fact finder (judge or jury) to determine.

The defendant’s attorney also had objected to the judge’s decision to allow testimony from two Jefferson City police officers as well as the patrol’s criminalist, all of whom testified that the defendant was intoxicated that night.

The appellate decision stated the defendant “acknowledges that ‘mental state’ has been defined under Missouri law as the (reason) element of a crime, such as purpose, knowledge, recklessness and negligence.  Thus, her argument hinges on us finding that the ‘intoxicated condition’ element of a DWI offense constitutes a ‘mental condition.” The defendant’s attorney argued that nothing in (the new law) defined what ‘mental condition’ means, and he argued that intoxication is obviously a mental condition, because it ‘affects the mind’s capabilities.

The appellate judge wrote: “It is unclear to us what criminal offenses the Legislature had in mind when it included ‘mental condition’ in the proscription on expert testimony where it is an element of the crime charged we do not believe that intoxication is a mental condition about which an expert may not testify in a DWI case.”

The appellate judge further wrote that  our courts have ‘characterized intoxication as a physical condition usually evidenced by unsteadiness on the feet, slurring of speech, lack of body coordination and an impairment of motor reflexes. “Hence, we find that intoxication is not a mental condition, and the statute’s limitation does not apply,” the appellate judge stated. The decision from the three panel of judges that to get her conviction overturned, the defendant would have prove that without the evidence she had challenged in her appeal, the jury would have made a different decision at trial.  The appellate court determined that the jury would have come to the same conclusion had the witnesses not testified at trial.

The word immediate does not invalidate notice

When an officer informs a DWI suspect that he will “immediately” lose his license if he does not submit to a breath test, even though technically he may have several days before his license is revoked, that technicality is not misleading and is not violating the Defendant’s due process rights.

A recent case from the Eastern District of Missouri Court of Appeals overturned a lower court that had held in favor of the DWI Defendant.  The appellate court held that the trial court erred in concluding that the Defendant’s breath test result was obtained in violation of his due process rights because the warning that Defendant’s license would be “immediately” revoked, which is required by Section 577.041.1, did not mislead Mr. Thomas as to the consequences of refusing to submit to a breath test.   The appellate court reversed and remanded the case.

 The Director of Revenue (“Director”) had appealed the judgment of the trial court reinstating the driving privileges of the Defendant. The Director argued the trial court erred in finding Mr. Thomas’ breath test results were inadmissible because they were obtained in violation of Section 577.037 RSMo 2000 (Cum. Supp. 2007) and also in violation of the Defendant’s due process rights.

The Director had argued that the warning could not be unconstitutional because “[t]he Missouri General Assembly mandated by statute the particular language an officer is required to use when requesting that a driver submit to a test to determine his blood alcohol content” including the language that “the person’s license shall be immediately revoked upon refusal to take the test.” (emphasis in original).

The Defendant argued that his  “test results were obtained in violation of his due process rights because the officer informed him his license would be “immediately” revoked if he failed to submit to the test. Defendant reasoned that this statement was “blatantly incorrect information” because, under the statute, he would receive a fifteen-day driving permit prior to the date of revocation. The “untrue” and “coercive” warning, he argued, invalidated his consent by prejudicing his ability to make an informed decision.”

The case was Thomas v. Director of Revenue,  No. ED106360-01. The opinion was written by Judge Angela T. Quigless, with judges Roy L. Richter and Robert M. Clayton III  concurring.  Attorneys for Appellant were Morgan L. Brewington and Zachary M. Bluestone, while attorney for Respondent were Michael Carter and Shelly A. Cronin.

Inmates cannot be held because they can’t pay bail

St. Louis jails cannot hold inmates simply because they can’t pay bail, according to a recent ruling by a federal judge who also granted inmates class action status to sue.

The decision was made by U.S. District Judge Audrey Fleissig’s. The ruling gives officials a week to hold new detention hearings for current inmates in the city’s two jails.  It also says new arrestees must have a hearing within 48 hours of their arrest. However, inmates can still be held if they are a deemed a danger to the community or if there is no other way to ensure they show up for court. 

As to how many inmates this may affect, it could be hundreds who will be granted new hearings or possibly even released. The judge’s decision comes amid a trend to re-examine bail practices in Missouri and the rest of the nation.

Attorneys for the City are expected to ask for a stay of the judge’s order, arguing that the ruling could allow the release of dangerous individuals who pose a threat to the publics’ safety.

And there has been a push among local advocates to close the city’s workhouse, once called the Medium Security Institution. The inmates had filed a suit claiming St. Louis is violating their constitutional rights for not weighing their ability to pay bonds before incarcerating them.

The inmate’s attorneys argued that inmates have been known to spend days or weeks without being granted a hearing to reduce their bond. During that time the inmates lose jobs, homes and family connections, along with suffering mental and physical problems from being detained in jail.

The judge cited evidence in the record that the duty judge presiding over initial appearances rarely considers information about an arrestee’s financial situation.  In part because the bond commissioner rarely provides it and arrestees have been told not to speak by sheriff’s deputies.

Information gathered by the plaintiffs suggest that 98% of 222 cases they examined there was no information provided by the bond commissioner as to the defendant’s ability to pay.

State wins Dept. of Revenue DWI suspension/revocation case

A recent decision by the Missouri Eastern District Court of Appeals ruled in favor of the Department of Revenue holding that a judge misapplied the law when it made a credibility determination on uncontested evidence after the judge admitted the Department’s records for limited purpose under Section 302.312 RSMo.

The case centered around a state trooper who was never successfully served after several attempts to get him to testify regarding his actions surrounding a DWI stop.

The Court reasoned that because the Trooper was equally available to both parties and never served valid process, the Defendant’s right to due process of law was not violated and the trial court lacked authority to impose a sanction or remedy for non-attendance of a witness without a determination that witness was duly summoned and served a validly executed subpoena to appear before the trial court.  

 The Missouri Department of Revenue had appealed the judgment of the trial court in favor of the Defendant after hearing his Petition for Trial De Novo Of License Suspension/Revocation.

The Defendant’s license had been suspended after his arrest during a traffic stop by a Missouri State Highway Patrol Trooper for driving while intoxicated on January 9, 2016.  After multiple continuances attempting to compel by Missouri subpoena the presence of the Trooper, who had since become an FBI agent on traveling assignment, hearing was held; the only evidence received was the Department’s records related to the stop, submitted under Section 302.312 RSMo.  However, due to the non-attendance at trial of the trooper, the trial court found in favor of Ridgway, sua sponte raising a due process violation for Ridgway’s inability to cross-examine the witness against him and finding the Trooper lacked credibility.

The Department raised the following three points on appeal:

Point I, the Department argued the trial court erred in raising, sua sponte, a due process issue related to Ridgway’s inability to cross examine the Trooper.

Point II, the Department argued the trial court misapplied the law in finding the inability to cross-examine the Trooper violated Ridgway’s right to due process of law.

Point III, the Department argued the trial court misapplied the law when it admitted the Department’s records submitted under Section 302.312 RSMo for a limited purpose, when the plain language of the statute requires their admission into evidence. 

 The lower court’s decision was reversed and remanded. The opinion was by Philip M. Hess, with the following concurring: Robert G. Dowd, Jr., and Mary K. Hoff.  Attorney for Appellant was Daniel N. McPherson and Attorney for Respondent was Travis L. Noble, Jr., with Magen D. Atzert, Co-counsel 

Mo legislature passes bill requiring treatment courts

A bill that requires treatment courts in all state circuit courts has made its way to the Missouri Governor’s desk for signing.

House Bill 547, sponsored by state Rep. Dave Griffith, R-Jefferson City.  The bill allows prosecutors to refer not only veterans, but other offenders to treatment courts.  Presently, circuit courts aren’t required to provide treatment courts such as veterans’ treatment courts, adult treatment courts, DWI courts, family treatment courts and juvenile treatment courts.

This bill, however, would require each circuit court to establish a treatment court division before Aug. 28, 2021.  It would also provide additional training for both court officials and prosecutors.

Preference is to be given to combat veterans.  Veterans would be those who can show military service documentation of combat theater, receipt of combat service medals, receipt of imminent danger or hostile fire pay or tax benefits.

The bill would make the veterans treatment courts focus on the following: co-occurring disorders; substance abuse disorders; or mental health disorders of defendants who are military veterans or current military personnel.

The bill had some opposition, mainly based on concerns from prosecutors and defense attorneys about how violent crimes would be defined. 

Man can’t be denied privacy for call to lawyer

Supreme Court case determines a DWI suspect is entitled to a private consultation with his attorney under Missouri’s implied consent law, assuming the suspect requests a chance to call his lawyer.

Hearing this issued for the first time, the state high court reviewed Jereme Roesing v. Director of Revenue, an appeal from Jackson County circuit court. By a decision of 4-3, the Court reversed the decision and remanded the case (sends it back) to the trial court. The Court ruled that because law enforcement deprived the man of his right to confer privately with his attorney, and the Director of Revenue failed to show the man was not prejudiced as a result, his refusal to consent to the chemical test was not voluntary and unequivocal, and the circuit court erred in sustaining the revocation of his driving privileges.

The facts of the case are as follows:

The Defendant was arrested for driving while intoxicated, transported to the police department, and read Missouri’s implied consent law. Before deciding whether to consent to a chemical breath test, Defendant asked to speak with his attorney, and the officer allowed him to attempt to contact an attorney.

During the call, the attorney asked to speak with the officer, requesting to speak with the Defendant in private. The officer refused to give Defendant privacy, advised the attorney the conversation would be recorded and stood near the Defendant for the remainder of his conversation with his attorney.

Defendant ultimately refused to submit to the chemical breath test, and the Director of Revenue revoked his driving privileges for one year pursuant to section 577.041, RSMo.  Defendant sought review in the circuit court, which entered judgment sustaining the revocation after an evidentiary hearing. Defendant then appealed.

The Supreme Court held: Because law enforcement deprived Defendant of his right to confer privately with his attorney, and the Director failed to show Defendant was not prejudiced, his refusal to consent to the chemical test was not voluntary and unequivocal, and the circuit court erred in sustaining the revocation of his driving privileges.

Section 577.041.1 provides a driver who wishes to speak with an attorney the right, upon request, to 20 minutes in which to attempt to contact the attorney. The statute’s purpose is to give the driver a reasonable opportunity to contact an attorney to make an informed decision whether to submit to a chemical test. A driver who successfully contacts an attorney is afforded a reasonable opportunity to make an informed decision only if the driver is able to disclose candidly all necessary information to receive appropriate advice from the attorney. For a driver to have meaningful contact with an attorney, the conversation must be private, especially when read in harmony with section 600.048.3, RSMo, an older statute requiring law enforcement to have a private room available for a person held under a charge to talk privately with the person’s lawyer. The legislature’s decision not to eliminate the right to privacy in section 577.041 further indicates it is inherent in that statute. By listening to and recording Defendant’s end of the conversation, law enforcement obstructed his opportunity to speak privately with his attorney, making his refusal of the chemical test involuntary and equivocal.

The director failed to show Defendant was not prejudiced as a result. Despite the attorney specifically requesting privacy, an officer listened to and recorded Defendant’s end of the conversation, then distributed the recordings to the prosecutor’s office for use in Defendant’s criminal case.

The argument against the decision was spelled out in Judge W. Brent Powell dissent. He would affirm the circuit court’s judgment sustaining the revocation of the man’s driving privileges because the man received the benefit of the only right the statute confers – 20 minutes in which to contact an attorney. The statute’s plain language, he argues, confers no right to private consultation with an attorney privately before deciding whether to refuse a chemical breath test.

2

REVERSED AND REMANDED.

Court en banc holds: Because law enforcement deprived Roesing of his right to confer privately with his attorney, and the director failed to show Roesing was not prejudiced, his refusal to consent to the chemical test was not voluntary and unequivocal, and the circuit court erred in sustaining the revocation of his driving privileges. Section 577.041.1 provides a driver who wishes to speak with an attorney the right, upon request, to 20 minutes in which to attempt to contact the attorney. The statute’s purpose is to give the driver a reasonable opportunity to contact an attorney to make an informed decision whether to submit to a chemical test. A driver who successfully contacts an attorney is afforded a reasonable opportunity to make an informed decision only if the driver is able to disclose candidly all necessary information to receive appropriate advice from the attorney. For a driver to have meaningful contact with an attorney, the conversation must be private, especially when read in harmony with section 600.048.3, RSMo, an older statute requiring law enforcement to have a private room available for a person held under a charge to talk privately with the person’s lawyer. The legislature’s decision not to eliminate the right to privacy in section 577.041 further indicates it is inherent in that statute. By listening to and recording Roesing’s end of the conversation, law enforcement obstructed his opportunity to speak privately with his attorney, making his refusal of the chemical test involuntary and equivocal. The director failed to show Roesing was not prejudiced as a result. Despite the attorney specifically requesting privacy, an officer listened to and recorded Roesing’s end of the conversation, then distributed the recordings to the prosecutor’s office for use in Roesing’s criminal case.

Appeal from the Jackson County circuit court, Judge Robert L. Trout

Argued and submitted January 15, 2019; opinion issued April 30, 2019

Attorneys: Roesing was represented by William C. Kenney of the Bill Kenney Law Firm LLC in Kansas City, (816) 842-2455. The director was represented by Deputy Solicitor General Zachary M. Bluestone of the attorney general’s office in Jefferson City, (573) 751-3321, and Morgan Brewington of the department of revenue in Jefferson City, (573) 332-1605.

Two organizations filed briefs as friends of the Court. The American Civil Liberties Union of Missouri was represented by Anthony E. Rothert and Jessie Steffan of the ACLU of Missouri Foundation in St. Louis, (314) 652-3114, and Gillian R. Wilcox of the ACLU of Missouri Foundation in Kansas City, (816) 470-9938. The Missouri Association of Criminal Defense Lawyers was represented by Denise L. Childress of Ward & Childress Trial Lawyers in Washington, Missouri, (314) 394-2150.

This summary is not part of the opinion of the Court. It has been prepared by communications counsel for the convenience of the reader. It neither has been reviewed nor approved by the Supreme Court and should not be quoted or cited.

Overview: A man appeals the revocation of his driving privileges, raising the issue of first impression whether he was entitled to a private consultation with his attorney under Missouri’s implied consent law. In a 4-3 decision written by Judge Mary R. Russell, the Supreme Court of Missouri reverses the judgment and remands (sends back) the case. Because law enforcement deprived the man of his right to confer privately with his attorney, and the director of revenue failed to show the man was not prejudiced as a result, his refusal to consent to the chemical test was not voluntary and unequivocal, and the circuit court erred in sustaining the revocation of his driving privileges.

Man gets new DWI trial after blood drawn without warrant

A recent appellate decision has given a Columbia, Missouri man a new trial after it was determined that his blood was withdrawn without a warrant and later used as evidence in his jury trial.

A police officer from the City of Columbia was called to the scene and asked the man if he would consent to a preliminary breath test, to which the man gave a thumbs up sign. The man also allegedly indicated he had been drinking a little.

When the man got to the hospital, the officer placed the man under arrest for drinking while intoxicated. According to court records, before he could read him the implied consent law that requests a blood sample, the man became unresponsive to the officer and the medical staff treating him. The officer then instructed the nurse to take his blood.

The test indicated the man’s blood alcohol content (“BAC”) was .161. The officer later obtained a search warrant for the hospital’s own emergency records which included a toxicology report indicating the alcohol level of the man’s blood.

At trial, the man sought to suppress the evidence arguing it was obtained without consent or a warrant. The evidence was allowed, and he was convicted of second-degree assault in Boone County Circuit Court. 

The charge: second-degree assault – driving a vehicle while intoxicated that resulted in an injury.  It was alleged he ran a red light on a highway exit ramp where he ended up striking another car. A woman and her daughter in the other car were taken to a hospital with injuries. The man was sentenced to 10 years in the Missouri Department of Corrections.

The man appealed. The Missouri Court of Appeals stated:  “The poisonous presence of the improperly admitted warrantless blood draw evidence was prejudicial beyond repair and, thus, outcome determinative. The evidence of the warrantless blood draw was the product of an illegal search. Accordingly, the trial court erred in overruling Mr. Osborn’s motion to suppress and permitting the admission of the BAC results relating to that illegal search.”

A new trial date will be set.

Up with smoke: Proposed Bill reduces penalty for marijuana possession

The Missouri House Special Committee on Criminal Justice voted 7-0 to approve legislation that would decriminalize small amounts of marijuana.  The bill proposes to reduce the penalty for marijuana possession of less than 36 grams from a felony to a class D misdemeanor.  The bill further would make possession of 10 grams or fewer from a misdemeanor to an infraction.

The idea behind the bill, according to its sponsor Rep. Shamed Dogan, is to allow law enforcement to focus on more serious crimes other than marijuana possession arrests. Reportedly, marijuana possession is the second most common arrest behind DWI in Missouri, whereas there continues to be large number of opiate related deaths.

This bill is just one of several related to marijuana possession crimes.  A bill that expunges certain prior marijuana conviction records for patients covered under the state’s new medical cannabis law was passed by  the full House just last March.

The proposed bill to decriminalize certain types of marijuana possession will go to the House Rules –  Legislative Oversight committee.   A passage of the bill is estimated in the future to increase revenue, decrease the number of persons incarcerated, and decrease the number of persons that need to be tracked on probation.

Proposed bill attempts to curtail expired tags, plates

A great article recently in the St. Louis Post-Dispatch talked about the problem in the City of St. Louis with drivers continuing to drive with expired temporary tags and license plates. 

Anecdotally, the problem appears to be growing in the City. When Jimmie Edwards became the public safety director for the City of St. Louis in 2017, he apparently made it known to police officers to be on the lookout for expired temporary tags and license plates, and then to issue the drivers tickets.

It can be difficult to measure just how much of a problem there really is and how much money is lost in unpaid registration fees and sales taxes.

The Post-Dispatch article stated that St. Louis County police officers last year issued more than 10,000 tickets, including for expired plates.  And that total doesn’t include tickets that were voided, that prosecutors declined to pursue, or were issued under local ordinances in small municipals. County officers also issued 18 tickets to drivers for issues with temporary permits.

As to police in the City of St. Louis, more than 13,000 tickets were issued for operating without a proper vehicle license, up more than 3,000 than in 2017, the article stated.

But even with increased enforcement of the problem, it continues to persist. An obvious factor is the costs of renewing one’s license plates in Missouri.  There are costs associated with the renewal, such as safety and emissions tests, showing current proof of auto insurance, and that you have paid your registration and processing fees, as well as paid your personal property tax.

Many who get cited for expired tags and plates are often poor and cannot pay property tax on their car.

State Rep. Donna Baringer had sponsored a measure that became law last summer which requires drivers to turn in temporary tags to a state license office when requesting permanent plates.

Currently she has a bill before the Legislature that she hopes will deter the use of expired plates while educating car buyers.  The proposed bill requires a check for the amount of the sales tax be made out to the Missouri Department of Revenue when sales tax is rolled into a car loan.  That check now goes to the vehicle’s buyer, who can spend it elsewhere.

Additionally, Baringer’s bill also would require a vehicle buyer to sign a waiver.  The waiver  would state that all applicable sales taxes are due within 30 days of the purchase and that it is illegal to drive a vehicle in Missouri without properly insuring the vehicle.  Furthermore, by not submitting the tax within the 30 days would result in a fine of $25 every 30 days, or a maximum fine of $200.