DWI defense win turns on credibility of officer

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

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

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


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

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

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

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

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


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

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

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

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

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


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

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

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

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