Author Archives: wthornburg

Appellate Decision goes to State in DWI conviction case

Here is a win for the State/Law Enforcement against a DWI defendant.  The defendant admitted to law enforcement officers that he was intoxicated when he was arrested and that he was driving his truck at the time of the accident.  The police had pulled up to the scene of the accident.  When they got there, they observed that the defendant was intoxicated.

The officer smelled a “faint” odor of alcohol on his breath, and noticed that his eyes were bloodshot. Based on those observations, the officer believed

Defendant was intoxicated. Defendant declined medical treatment at the scene.

Defendant told the officer that he was traveling northbound on North

Eastern Avenue when the passenger side wheels of his truck went off the side of the

road. He said that he overcorrected and crossed over the center line, went off the

opposite side of the road, and then caught an embankment, which caused the truck

to flip. The truck rolled several times before it came to rest on its roof next to the

road.

A second officer came to the scene and began a DWI investigation.  Officer detected a “strong odor” of alcohol coming from Defendant. He also observed

Rastorfer’s eyes to be “watery and glassy,” and his balance “swaying and uncertain.”

Defendant stated that he had last consumed an alcoholic beverage 30

minutes earlier.

Officer performed two field sobriety tests: a horizontal gaze nystagmus (HGN) test, and the walk-and-turn test. He detected three out of six possible clues of intoxication on the HGN test. Officer testified that the presence of four clues on the HGN test generally indicates intoxication; but he explained that he was unable to complete the HGN test, and did not score Defendant’s right eye, because Defendant “wouldn’t follow my proper instructions” by visually following the stimulus. Officer then detected four out of eight possible clues of impairment on the walk-and-turn test, and testified that two clues indicated intoxication. When Officer attempted to perform the one-leg stand test,

Defendant refused to comply. Following his investigation, Defendant was arrested

for driving while intoxicated.

To sustain a conviction for driving while intoxicated, the State must establish a

temporal connection between the defendant’s last operation of a motor vehicle and

his observed intoxication. The Defendant’s argument was that the State’s evidence was insufficient to establish, beyond a reasonable doubt, that he was intoxicated while driving.

In this case, the Appellate Court looked at the following facts to affirm the trial court’s conviction for DWI:

That Defendant claimed he last consumed alcohol at 10:00 p.m. and that he said he had been in Grain Valley, more than thirty miles away, in the three hours preceding the

accident, it was a reasonable inference that Defendant had finished drinking well

before the accident occurred. The evidence also indicated that the accident had

occurred only shortly before officers encountered Defendant which supported the

inference that his observed intoxication preceded the accident. The nature of the

accident – a single vehicle rollover without obvious explanation in clear weather, on

a straight, dry and paved road – also supports the inference that the cause of the

accident was intoxication-related. Defendant’s refusal to submit to blood alcohol

testing also supports an inference of his intoxication while driving. The fact that

the State’s evidence did not wholly foreclose the possibility that Defendant became

intoxicated following the accident does not require reversal of the trial court.

The case was State v. Rastorfer, Court of Appeals, Western District of Missouri.

Festus Municipal Court

Festus Municipal Court Traffic Attorneys
Festus, MO Traffic Court
Festus Traffic Lawyers

In 2018, Festus Police issued 1256 citations.

Did you get a ticket in Festus, Missouri?
Stop Sign, Electric Signal Violation, Driving While Suspended, Possession of Marijuana, or any other ticket, our Festus traffic lawyers can handle it where “no points” is the goal.



Festus Speeding Ticket Traffic Law Defense
Did you receive a Speeding ticket in Festus?

This page contains Court information and links for Festus, Missouri.

Festus Municipal Court
711 W. Main St.

Festus, MO 63028

Phone: 636-937-1282

Fax:  636-937-5999


City of Festus, MO website. Check the website to find a list of fines.

Presiding Judge

Hon. Laurence Schmidt

Court Administrator

Adrienne Navarro

Court Hours

Monday, Wednesday, Thursday and Friday

8:00 AM to 4:00 PM

Tuesday

8:00 am – 1:00 p.m.

2:00 pm – 5:00 pm

Court is the 2nd Thursday of the Month starting at noon.

Court is held every other month on the first Wednesday of each month at 7:00pm.

Payments can be made online

Ellisville Municipal Court

Ellisville Municipal Court Traffic Attorneys
Ellisville, MO Traffic Court
Ellisville Traffic Lawyers

In 2018, Ellisville issued 444 citations.

Did you get a ticket in Ellisville, Missouri?

Stop Sign, Electric Signal Violation, Driving While Suspended, Possession of Marijuana, or any other ticket, our Ellisville traffic lawyers can handle it where “no points” is the goal.
Ellisville Speeding Ticket Traffic Law Defense
Did you receive a Speeding ticket in Ellisville?

This page contains Court information and links for Ellisville, Missouri.

Ellisville Municipal Court
37 Weis Ave
Ellisville, MO 63011

Phone: 636-227-3729

Fax:  636-779-5390


City of Ellisville, MO website. Check the website to find a list of fines.

Presiding Judge

Hon. Donald K. Anderson, Jr.

Court Administrator

Joanna Fiehler

Court Hours

Monday-Friday

8:30 AM to 4:00 PM – Closed daily from noon to one for lunch.

Court is the 2nd Thursday of the Month starting at noon.

DWI expungement

Cleaning your record of that first DWI

Description: Missouri law allows individuals to have their first and only DWI expunged from their records. 

If you have a 10-year-old 1st time offense for a DWI, you have the chance to have it expunged which erases it from the record as if it never existed.  Recent changes in Missouri law under Section 610.140 make it highly advantageous to get this process done.

How do you qualify?

*You pled guilty at least 10 years ago;

*You pled guilty or were convicted for a first alcohol-related driving offense (misdemeanor or  county or city ordinance violation);

*You did not receive DWI while driving a commercial vehicle;

*You have not been convicted of any other alcohol-related driving offense.

If you meet this criterion, you may apply to the county court  – the one in which you pled guilty or were sentenced — for an order to expunge from all official records of all of your arrest, plea, trial or conviction.

Benefits of DWI expungement

The benefits of having your DWI expunged are significant.  They include the following:

*No need to disclose the conviction (in most employment related situations).

*It will not be perjury if you don’t admit it.

*Starting over with a clean slate. 

No obligation to reveal the conviction

If curious, here’s how the statute reads when it comes to your responsibility to reveal your conviction:   “No person as to whom such order has been entered shall be held thereafter under any provision of any law to be guilty of perjury or otherwise giving a false statement by reason of his or her failure to recite or acknowledge such arrest, plea, trial, conviction or expungement in response to any inquiry made of him or her for any purpose whatsoever and no such inquiry shall be made for information relating to an expungement under this section.”

As you can see, the slate is wiped clean for purposes of most legal matters.  As to revealing your DWI to a future school or employer, you are under no legal obligation to report it when filling out that application form. However, for some employment applications, the devil may be in the details of how the question is being asked.  You may want to consult an employment attorney if you have any doubts.

How will the expungement get done?

Your lawyer will conduct a background check of you and file the proper forms in the county where the conviction occurred. Then you and your lawyer will appear in court at a hearing. 

If after the hearing, the Court determines that you have not been convicted of any subsequent alcohol-related driving offense; that there has not been any other subsequent alcohol-related enforcement contacts as defined in section 302.525; and that there has not been other alcohol-related driving charges or alcohol-related enforcement actions pending at the time of the hearing on the application, the court shall enter an order of expungement of the first-time DWI.

Once the order of expungement is granted by the court, the records and files maintained in any administrative or court proceeding in an associate or circuit division of the circuit court under shall be confidential.  The records will only be available to the parties or by order of the court for good cause shown. The statute specifically states that the effect of such order shall be to restore the person to the status he or she occupied prior to such arrest, plea or conviction, as if such event had never taken place.

Keep in mind that a person shall only be entitled to one expungement pursuant to this section of the statute. However, nothing contained in this section shall prevent the director from maintaining such records in order to ensure that an individual receives only one expungement pursuant to this section.  The director will have access to the information for the purpose of informing the proper authorities of the contents of any record maintained pursuant to this section.

Please note that the provisions of this expungement statute does not apply to any individual who has been issued a commercial driver’s license or is required to possess a commercial driver’s license issued for Missouri or by any other state.

Expungement filing fee costs

An attorney will help you prepare your documents needed for the filing of the expungement petition and represent you at your hearing.  In addition to the attorney fee, there will be the cost of a filing fee.  The filing fees for expungement under Section 610.140 vary from county to county. Please contact us so we can get you the most recent information regarding filing fees.

New bill seeks to consolidate small police departments

Jefferson City has become the showdown which will likely determine the fate of small town police departments in St. Louis County.

Politicians in Missouri’s state capital have proposed a bill in the House to merge municipalities with fewer than 5,000 residents and spanning no more than two square miles. The cities would be expected to merge within five years.  If they do not merge, then they will be expected to contract with the St. Louis County police force for law enforcement.

Altogether, there are almost 24 police departments that would be required to combine with neighboring cities or have to pay St. Louis County for its policing services.

The proposal is designed to address concerns that small cities may have been relying upon questionable traffic related tickets to generate revenue.  This policy of generating revenue from excessive ticketing came to light in the aftermath of the shooting of Michael Brown resulting in rioting and discontent in Ferguson, Missouri,  and the North County region of St. Louis County.

Many of these small municipalities have not achieved accreditation for their police force.  Often police officers who were not a good fit for larger cities of the County would seek law enforcement jobs with the small North County cities.

Several small municipal police departments have already consolidated.  Nearly 12 or so have contracts with St. Louis County.   And seven other cities have merged to form the North County Police Cooperative.

Critics of the proposal have concerns about how the legislation would impact departments’ emergency response and communication between municipalities.  The legislation is House Bill 81.

Court says: No Hearing, No Denial of Probation

The Missouri appellate court in the Western District issued an opinion stating that a circuit court has authority after sentencing only as provided by statute. In this case, it said that to deny statutes governing a 120-day shock incarceration program by not listening to the Department of Corrections’ recommendation for probation, the circuit court must first hold a hearing within a certain time period. If the circuit court fails to do so, the defendant must be released on probation.

This case is about a defendant who was convicted of felony driving while intoxicated in the Circuit Court of Livingston County.  The defendant was sentenced to four years’ imprisonment. He was ordered to participate in a 120-day institutional treatment program pursuant to § 559.115.3. When the court recommends and receives placement of an offender in a department of corrections 120-day program, the offender shall be released on probation if the Department of Corrections determines that the offender has successfully completed the program.

However, when the Department of Corrections reported to the circuit court that the defendant would successfully complete the 120-day program and recommended release on probation, the court denied him release without a hearing

The defendant filed a Petition for Writ of Mandamus in the appellate court, contending that the circuit court lacked authority to deny him probation, since it failed to hold a hearing on the matter within 120 days of defendant’s delivery to the Department of Corrections. Even if the 120 day deadline coincides with date of completion of the program there still needs to be a hearing. “An offender cannot be stripped of his right to a hearing on his probation determination simply because he completed the program within the time limits but on the last day of such time limits.”

The appellate court issued a writ in Mandamus, holding that (1) The circuit court lacked authority to deny the defendant probation without first holding a hearing on the matter. And,

(2) Because the court failed to hold a hearing on the matter within 120 days of defendant’s

delivery to the Department of Corrections, the court has exhausted its authority.

So a permanent writ in mandamus was issued directing the circuit court to rescind its order denying the defendant release on probation, and to enter an order releasing him on probation on appropriate conditions.

New St. Louis Prosecutor makes changes in policy

St. Louis County Prosecutor Wesley Bell took office at the beginning of the year. The County will no longer prosecute marijuana possession cases of fewer than 100 grams. Prosecution of more than 100 grams will be pursued only if evidence suggests the sale or distribution of marijuana. In comparison, the City of St. Louis announced in June that possession of fewer than 100 grams would not be prosecuted unless there are aggravating circumstances.

The County will no longer prosecute people who fail to pay child support.  However, current cases will not be dropped. Those cases will be placed on hold. The idea is to not revoke probation purely upon the failure to pay child support. Similarly, the County will not press charges against those who do not pay restitution unless there is a court order that establishes a person’s “willful nonpayment” of child support. 

The County will no longer be requesting cash bail on misdemeanor cases. And instead of warrants for Class D and E felony cases, the County will now issue a summons. 

The County also will not seek to “overcharge” defendants “to pressure the accused to admit guilt.” Prosecutors are barred from adding more counts to increase the range of punishment or threatening to route cases back to a grand jury if a defendant has exercised his or her pretrial constitutional rights.

We shall soon start to see what the impact will be, positive or negative, upon the people in the St. Louis County region. 

Audit of Lewis County questions prosecutor and sheriff policies

A recent audit of Lewis County addressed some irregularities in the prosecutor’s office there.

According to an audit report of Lewis County released last Friday by Missouri State Auditor Nicole Galloway, several recommendations were made for the Prosecuting Attorney, Sherriff, Public Administrator, and others.  The overall rating given the County was “fair.”

One recommendation was a need for accounting controls and procedures for the Prosecuting Attorney’s Office when it comes to their policies for amending traffic tickets.  Prosecutors are allowed to amend charges to if the person is willing to perform community service or make a contribution to a not-for-profit organization.  For example, in 2017, some 400 traffic tickets were amended to less severe or non-moving violations.  From those tickets, some $52,000 was given to not-for-profits, which included more than $44,000 given to a not-for-profit founded by the Prosecuting Attorney.

The audit indicated that Missouri’s constitution only allows proceeds of all penalties, fines and forfeitures to be given to the County School Fund.  Apparently this practice of requiring contributions to amend tickets has since stopped.

As to the Sherriff’s Department, the audit found that it had deposited $132,500 for bonds into the office’s fee bank account. However, it found insufficient controls and procedures related to recording the bond money and certain aspects surrounding receipts.  The same condition was noted back in the 2015 audit.

The auditor’s report noted that since the previous audit in 2015, some improvements had been made while others continued to persist.

Complete copy of the audit report

MO Supreme Court hears case challenging DWI conviction

An interesting case was just heard before the Missouri Supreme Court that challenges a defendant’s drunk driving conviction.

The defendant’s attorneys argued before the seven judge panel that his breathalyzer results should not be admitted and that certain notices send out when a driver’s license is suspended are actually a violation of due process.

The defendant was arrested for suspicion of driving while intoxicated.  While at the police station, an officer asked him to submit to a breath test. The defendant initially declined.  Then he was told his license would be automatically revoked for one year for refusing the test. He also spoke to his attorney.  He then consented to the test, which showed his blood alcohol content was 0.087, which exceeded the legal limit. The officer gave him a notice of suspension and took his driving license.

The defendant asked for an administrative hearing, which ended up upholding his suspension.

His argument against the admissibility of the breath test and his claim of being denied due process was then rejected by the circuit court in Franklin County in March 2018.

The defendant argues that his breath test should be inadmissible for these reasons:

1) The police failed to file a report on a maintenance check of the breath analyzer used in his breath test with the Department of Health and Senior Services within 15 days as required.

2) Missouri’s Implied Consent Warning issued to him by an officer before the breath test is a violation of due process because it specified consequences if he declined to take the test but failed to inform him of the consequences if he submitted to it.

Few people but for law enforcement and lawyers know that drivers who decline the test have their licenses immediately revoked for a year.  However, few, if any, drivers understand the consequences of a refusal if the driver does not understand the consequences of submitting to the test.

3) And, that he was misled when the officer issued him a Notice of because it only states that the driving privilege is being suspended due to an arrest on probable cause for driving while intoxicated.  The defendant says the notice fails to inform about the other requirements for a suspension that include that the driver actually had a blood alcohol content of greater than 0.08 and was actually driving.

It will be interesting to see if these arguments can stick, and get the defendant’s conviction reversed and the case sent back to the trial court. We should know soon when the Supreme court rules.  Keep it posted here and we will let you know how it turns out. fffffffffffffff

MO law expands drug treatment court to more of the state

A bill that expands the reach of drug treatment courts in the state of Missouri recently was passed in the State General Assembly. Now those who suffer from substance abuse will have more options.

The bill was passed by the lawmakers and signed by the governor. It consolidates Missouri’s treatment courts – adult treatment court, DWI court, family treatment court, juvenile treatment court, and veterans treatment court. It also updates state statute to reflect the reality of the treatment court system today.

One important part of the bill is that it expands treatment courts to counties that don’t have them because of the cost to operate them. Now, a person in a county that does not have treatment court can be transferred to a court that offers treatment court as long as all parties agree to the transfer. The bill also sets standards of best practices for treatment courts throughout the state.

Advocates of the program emphasize that this is not a “get out of jail free card” program. The treatment program generally takes two years and requirements participants to meet plenty of requirements, such as obtaining employment or completing an education, staying clean with frequent random drug testing, and attending treatment meetings.

The governor also signed legislation that helps encourage students to pursue career paths in science, technology, engineering, and mathematics (STEM) fields. Another bill also passed sets out to bring more awareness to domestic violence, and will allow victims of domestic violence, sexual assault, rape, human trafficking or stalking to better keep their personal addresses confidential from the public’s access. The state’s office will provide a designated substitute address for survivors to use when creating new public records, as well as the option to securely forward mail to their confidential addresses. The hope is that this will keep survivors’ confidential addresses out of the hands of their assailants.

All in all, the recent General Assembly passed several helpful laws that will help those in need.