Tag Archives: tickets

Appellate Court rules on breathalyzer certification check

A recent Missouri Court of Appeals Eastern District decision reversed and remanded the lower court by holding that a trial court erred in excluding the test result from evidence because the Director of Revenue laid a proper foundation for its admission.

The Department of Health and Senior Services regulation 19 CSR 25-30.051(4) requires annual certification of any breath alcohol simulator used to perform a maintenance check on an evidential breath analyzer. The Court went on to say that to lay a foundation for the admission of a breath test result at trial, the Director only need submit proof the simulator was certified at the time of the relevant maintenance check.  In this case, that check was performed within 35 days prior to the Driver’s breath test. The Court said the Director does not have to submit proof of certification from any other year for purposes of admissibility.

The Director of Revenue had appealed from the judgment of the trial court reinstating the driving privileges of Justin Scott Hickenbotham.  The Director argued on appeal that the trial court erred in reinstating the driver’s driving privileges because the court erred in excluding from evidence the breath test result showing Driver’s blood alcohol content exceeded the legal limit.

The opinion was written by Judges Sherri B. Sullivan and Roy L. Richter.  Judge Colleen Dolan concurred.  Rachel Jones was the attorney for Appellant.  Attorneys for Respondent were Chastidy Dillon-Amelung and John F. Newsham.  The case was Justin Scott Hickenbotham v. Department of Revenue.

The Court referenced several previous cases in its analysis and stated the following: “Sellenriek’s and Kern’s reasoning that the only relevant evidence is that which demonstrates compliance when the breath test was administered is still good law and applies in this case. See Harrell, 488 S.W.3d at 208. As with the maintenance check provision, implicit in 19 CSR 25-30.051(4) is that a breath analyzer simulator certified at the time of the relevant maintenance check is capable of accurately calibrating the breath analyzer. Carey v. Dir. of Rev., —- S.W.3d —- (Mo. App. E.D. March 28, 2017); see Sellenriek, 826 S.W.2d at 340. Nothing in the regulations suggests the accuracy of the simulator at the time of the maintenance check is dependent on the certification of the simulator in prior or subsequent years. See Sellenriek, 826 S.W.2d at 340; Harrell, 488 S.W.3d at 208. “The Director need not prove the existence of certifications before the one in effect at the time of the relevant maintenance check in order to comply with 19 CSR 25-30.051(4).” Carey, —- S.W.3d —-. Instead, a foundation for the admission of the breath test result is laid when the Director presents evidence the simulator was certified at the time of the relevant maintenance check. Harrell, 488 S.W.3d at 208.

“Evidence of whether the simulator was properly certified in prior or subsequent years

goes to the weight of the breath test result, not its admissibility. See Kern, 936 S.W.2d at 862. Furthermore, Driver’s interpretation of 19 CSR 25-30.051(4) would mean a simulator not certified in 2013 or any subsequent year is effectively unusable and fails to account for simulators brought into use any time after 2013, an illogical reading leading to irrational results.”

The Court went on to say that in the present case: “The Director laid a sufficient foundation for admission of the result of the breath test administered in 2015 by submitting the 2015 simulator certification. The Director’s point on appeal is granted. Because the court did not make a finding as to whether Trooper Ganime had probable cause to arrest Driver, the cause is remanded for additional findings by the trial court.”

A $3.00 court fee applied to traffic tickets now under scrutiny

A $3.00 court fee charged to municipal court tickets that funds sheriff’s pensions is under scrutiny in Missouri.

Missouri’s municipal courts began in 2014 to charge a $3.00 court fee to defendants to help fund the Sheriffs’ Retirement Fund. However, some judges and legal scholars are questioning whether the charge is constitutional because the sheriff’s department does not operate at the municipal level.

As many retirement funds for government workers were having trouble receiving funding in Missouri and other states, that has not been the case for the sheriff’s fund. The $3.00 charge ended up increasing the retirement fund significantly, up more than $10 million in assets between 2012 and 2015.

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.

The attorney general at the time, Chris Koster, issued three opinions that indicated the $3.00 court fee that funds sheriff’s pensions should be applied to the state’s municipal courts. The Missouri Supreme Court, which prior to this third opinion issued, had not approved the fee to be used at the municipal court level. But this last time in 20163 the court approved it, adding the fee to traffic tickets and other tickets at the municipal level in 2014. The charge applied to all municipal courts except for St. Louis County and the City of St. Louis.

Approximately 362 of the 608 cities, villages and towns in Missouri that have a municipal court may be refusing to charge the $3.00 sheriffs fun charge to municipal court cases. This now has the Sheriffs’ Retirement System seeking help to the municipal level governments to charge the fee and pass on the money.

C.F. Barnes, executive director of the retirement system, sent letters on March 6 to Circuit Clerks in 102 Missouri counties, asking them to enforce the Missouri Supreme Court’s August 2013 order to apply the surcharge to court cases.

This is setting up a fight between the Supreme Court, municipal courts and the Sheriffs’ Retirement Fund. Stay tuned as this story progresses.

Mo. looking to educate drivers on how to interact with police

To avoid violent and sometimes deadly encounters between drivers and the police, the Missouri legislature is proposing bills that would help educate both motorists and the police on proper conduct.

The state of Illinois recently passed a bill that sets out a set of rules of engagement for drivers and the police to follow. A similar bill in Virginia is set to be passed.  There are also a few states considering doing the same: Mississippi, North Carolina, New Jersey, and Rhode Island.

The idea is to make traffic stops and police interactions more transparent by educating both sides on how to behave. The so called “Rules of the Road” adopted in Illinois this February is a model for other states when it comes to the details of proper and safe driver behavior that can help reduce the stress during a police encounter.

In Missouri, leaders want to include the information as part of the driver’s examination, and even have suggested making a video that would have to be watched. 

The Illinois guidelines suggest the following:

If your driver’s license or insurance card are in the glove box or under the seat, wait until the officer arrives and inform him or her about it and ask permission to retrieve them.

Be sure to keep both hands on the steering wheel in plain view and leave them there until you are instructed otherwise.

Never exit the vehicle unless you are asked to do so.  Getting out of your vehicle gives the impression that you are being aggressive and could be a potential threat to the officer.

Other suggestions are to always be polite and cooperative and avoid arguing the officer.  You can always fight your case in court if you feel your rights have been violated. 

If you are concerned that the officer may be a fake officer, roll down the window a little and tell the officer and state that you would like to go to a public place to conduct the stop.  Most officers will allow this unless they have a reasonable suspicion that you could be intoxicated or impaired in some way.

Finally, when stopped, turn off the engine, so the officer knows you will not try to take off and potentially hit him.  Then turn on the internal lights and open the window partway before the officer gets to your window.  And, of course again, keep your hands on the wheel.

St. Louis County Municipal court revenue down since Ferguson unrest

Looks as if the amount of revenue from St. Louis area municipal courts is way down since the social unrest in 2014 after the shooting death of Michael Brown in Ferguson. This is according to research tabulated in an annual report by the Missouri state court system.

The St. Louis Post-Dispatch tabulated information from the report and found that the data shows there has been a significant drop in revenue collected by municipal courts in St. Louis County.  Revenue was down from $53 million in fines and fees collected in year ending June 2014 to $29 million in year ending June 2016.

A similar trend can be seen in the number of traffic cases in the city of St. Louis.  The number of traffic cases filed last year fell to 66,008. This represents a drop of 69 percent compared to two years ago.

The data shows that the number of traffic cases in Ferguson last year, 1,736, had dropped 85 percent from two years ago, and non-traffic cases were down a similar percentage.  Fergusons court revenue plummeted from more than $2 million two years ago to just $579,000 this last year.  Ferguson had been under fire from the U.S. Department of Justice in the aftermath of Michael Brown. 

Ferguson’s municipal court system had been the target of a scathing U.S. Department of Justice report as well as intense scrutiny from the St. Louis Post-Dispatch and other media.  Local attorneys can tell you that the long lines out the door are no longer the case.

Other cities in North County known for their intense speed traps along the I-70 corridor have also seen a drop in revenue, according to the court report.

St. Ann, for example, saw revenue drop nearly a million dollars from $2.6 million two years ago to $1.7 million this last year. Tickets issued fell during that same time period from over 25,000 to 9,880. 

Florissant municipal court revenue went from $2.6 million to $1.7 million. Normandy fell from $1.4 million to slightly over $788,000.  Pine Lawn dropped from $2,2 million to $652,925.  Berkeley was down from $1.2 million to $378,327.

Court of Appeals strikes down ordinance establishing new police standards

A recent Eastern District of Missouri Court of Appeals ruling struck down an ordinance establishing new police standards in St. Louis County.

St. Louis County had enacted an ordinance authorizing the County Executive to impose countywide minimum police standards.  However, the cities affected by that ordinance filed a petition to have it invalidated. 

The trial court had ruled that the county had no authority to enact the ordinance.  The Court of Appeals affirmed. 

The reasoning was as follows: The Missouri Constitution provides that certain exercises of legislative authority be subject to a county-wide vote. At the same time, the state’s constitution also allows a county charter to authorize any action permitted by statute, including public health standards.  The Court says standards of police conduct fall within public safety and not public health as public health is limited to preventing disease.  Furthermore, the Court held that the county’s authority to legislate police conduct standards does not depend on the proposition that low standards harm residents. 

The Court said: “The County’s reliance on information presented to the County Council as to the impact of this ordinance on public health does not aid its argument for how this was a valid exercise of authority under Section 192.300.  The positive impact that improved law enforcement may have on the public – including the extent to which it improves the community’s physical and mental well-being – is simply not what was meant by “enhance public health” in Section 192.300.  To hold otherwise would be to broaden the scope of authority beyond what the legislature intended by granting counties the power to make “additional health rules” in Section 192.300.  Thus, this Ordinance was not a valid exercise of the County’s authority conferred by that statute.”

Law enforcement ups efforts to prevent DWIs over holidays

Watch out for intoxicated drivers this holiday season.  At least that’s what Missouri Highway Patrol is planning to do.  Law enforcement agencies around the country are expected to step up their efforts to curtail drinking and driving these next couple weeks.

Many law enforcement agencies from across the nation will be participating in an initiative called “Drive Sober or Get Pulled Over.”

According to news reports, the Missouri State Highway Patrol intends to increase the number of officers and checkpoints for the holidays.  Law enforcement officials say the combination of bad weather such as ice and snow plus driving impaired leads to a significant number of accidents.

Many Missouri courts will punish the first time DWI offender with some combination of fines, jail time, probation, community service, victim impact panels, and treatment through DWI courts.  They hope to curtail the number of DWI’s and DWI repeat offenders.   Missouri in 2015 had 870 traffic fatalities of which just under one-fourth of them involved some form of alcohol or drug impairment.

Be sure to have fun and drive safe this holiday season.  Happy Holidays.

Class action lawsuit filed against the City of Florissant

The City of Florissant has been sued  in Federal Court in a class action lawsuit on October 31, 2016 alleging a de facto debtor’s prison system. ArchCity Defenders, a non-profit organization providing civil representation and legal counsel, joined with a Washington DC firm are representing the Plaintiffs. The lawsuit alleges Constitutional violations under the 14th Amendment’s equal protection and due process clause and the 6th Amendment’s right to counsel and the right to a hearing to determine a person’s inability to pay. Allegations include “thousands [were] denied their civil rights while Florissant made $14 million. The lawsuit filed in the U.S. District Court for the Eastern District of Missouri, Eastern Division seeks injunctive, declaratory and compensatory relief for the plaintiffs and thousands of class members.

The allegations continue indicating that City officials used municipal codes and petty justifications such as unpaid parking tickets to target residents and jail them. Conditions are deplorable with inmates often kept in the same clothing for days or weeks. Women are denied menstruation products. Food quality is poor causing many detainees to be undernourished.

In 2015, Florissant collected $2.3 mill in court fines and issued 28,000 arrest warrants. Warrants can be issued for those who are unable to pay fines or miss court dates. If picked up on an arrest warrant, individuals can stay in jail until they pay a “bond.”

Florissant is a suburb in North St. Louis County. 

Man’s life ruined by Ferguson Court System

St. Louis native, Fred Watson, was watching baseball in his legally parked car in August of 2012 after playing basketball in Ferguson. Mr. Watson had frequented this specific park for many years.

Ferguson Police Officer, Eddie Boyd, III, parked his car in front of Watsons. The officer requested Watsons social security number, but as he was doing nothing wrong, Watson declined.  Officer Boyd then pulled his gun, removed Watson from the vehicle and arrested him for Driving without a license, failure to have insurance, failure to register and tinting his windows. Watson had his license, his car was registered in Florida and he had insurance.  Pursuant to Florida law, his windows were not excessively tinted. Watson was taken to jail where he posted a $700.00 bond to be released.

After he complained about the way he was treated, Ferguson added two more charges, including failure to comply with a police officer.

Watson worked for the National Geospatial – Intelligence Agency in St. Louis. This job requires special security clearance. At the time this happened he was undergoing a security clearance review. Watson tried to get the charges dropped on his own, but was forced to hire an attorney. His first attorney was unable to get the charges removed from his record. The goes on for a couple of years so Watson hires a second attorney. At this time, the Prosecuting Attorney indicated that all the charges had been amended down to illegal parking and/or littering and all the fines had been paid.

She was wrong. The failure to comply charges were still showing in some court records. Watson was fired because he couldn’t keep his security clearance without clearing up the charges in Ferguson.

His second attorney continued to try to clear his name. In March 2015, his letter criticizing the Ferguson Municipal Court was not responded. Prosecuting Attorney for Ferguson, Stephanie Karr resigned in May of 2016.

Now Watson is on his third set of attorneys, Arch City Defenders. This non-profit law firm has filed a Motion to withdraw the guilty pleas Watson never entered and to declare the convictions void.

New Missouri law bans traffic quotas, changes use-of-force laws

Missouri’s Governor Jay Nixon signed a new crime related bill that updates youth sentencing laws, changes use-of-force statutes, and bans traffic ticket quotas.

Changes will go into effect in 2018 and also make it easier to seal conviction records for some crimes. Currently state laws require a 20 year waiting period to file for an expungement of felonies and 10 years for misdemeanors. The new law reduces the waiting period for felonies to 7 years and 3 years for misdemeanors.  The cost to file is $250 and the person must not have received any other convictions during the waiting period.  Those convicted of dangerous felonies, domestic assault, certain violent crimes and sex offenses will not be eligible.

The legislation, approved by large margins in both the House and Senate, is designed to help former criminals find employment more easily. Records would be sealed from public viewing but prosecutors and police could still receive the information.

Legislation has changed how much physical force a police officer may use to bring Missouri in compliance with the U.S. Supreme Court ruling in Tennessee v. Garner.

Ticket quotas, a practice in some Missouri municipals, will likely be abolished with laws now prohibiting cities from encouraging or requiring an employee to issue a certain number of tickets. This change has come about after a push in traffic ticket reforms post 2014 Ferguson unrest and protests.

Sentencing reform also was part of the changes, particularly involving juveniles.  Juvenile murders older than 16 can be assessed a minimum of 50 years and be eligible for a parole hearing. Juvenile murders under age 16 can be sentenced to a minimum of 35 years and be eligible for a parole hearing.  These sentencing options were added for juvenile murders after a 2005 U.S. Supreme Court case ruled death sentences were unconstitutional, which left Missouri with only one option of a first-degree murder conviction.  And a later 2012 case stated that life without parole also was unconstitutional.

 

Missouri Legislature trying to stop ticket quotas

In May, the Missouri Legislature passed a law banning law enforcement agencies from setting quotas for traffic citations. The Bill is currently awaiting signature from Governor Nixon. The Bill was sponsored by Senate Republican Eric Schmitt from Glendale. He indicated the law was necessary to prevent local law enforcement agencies from using police officers to pad their budgets. For example, the Mayor of Edmundson sent a letter to the city’s police officers telling them they needed to issue more tickets in order to help pay their salaries.

Currently only St. Louis County has restrictions on traffic citations quotas. This new law would expand to all law enforcement agencies in the state. Punishments for violation of this new law could include Class A misdemeanor charges against city officials who order employees to issue a certain number of traffic citations.