Tag Archives: Missouri DWI lawyers

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.

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.

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

Jackson County SATOP

Blue Springs

Central States Mental Health Consultants, Inc. (816) 224-4417
1132 SW Luttrell Rd., Ste. F
Blue Springs, MO 64015

Midwest ADP, Inc. (816) 228-5218
1700 US 40 HWY EB, Ste 206
Blue Springs, MO 64015
www.midwestadp.net

Independence

County Court Services, Inc. (816) 836-3677
280 S. Memorial Dr.
Independence, MO 64050

Midwest ADP, Inc. (816) 836-2220
3923 S. Lynn Ct.
Independence, MO 64055

Kansas City

Dismas House of Kansas City, Inc. (816) 256-5330
1 W. Armour Blvd, Ste 210
Kansas City, MO 64111

Midwest ADP, Inc. (816) 221-8268
615 W 39th Street
Kansas City, MO 64111

Northland Dependency Services (816) 472-4637
3917 Broadway
Kansas City, MO 64111

Swope Health Services (816) 599-5851
3950 E. 51st St.
Kansas City, MO 64130

Lee’s Summit

Central States Mental Health Consultants, Inc. (816) 525-2021
216 NW McNary Ct
Lee’s Summit, MO 64086

Midwest ADP, Inc. (816) 347-1550
321 SE Wilson
Lee’s Summit, MO 64063