Case Law Update: 2011-2014 Cumulative Edition

Holding: Even though the uncontroverted evidence was that Driver had “at least one beer” prior to an accident that led to arrest by police several hours later, the trial court was free to find that Director had not shown that Officer had reasonable grounds to believe Driver was intoxicated at the time of the accident, Sec. 577.041.4(2)(a), and the appellate court defers to this factual finding. Judgment reinstating license affirmed.
Ridge v. Director of Revenue, 428 S.W.3d 735 (Mo. App. W.D. 2014):

Where Driver originally said he would take a blood test, but then in response to further Officer questioning said he didn’t really “want” to, this was not an “unequivocal refusal” since not “wanting to” submit to the test and “refusing to” submit are distinguishable; judgment reinstating license is affirmed.

Facts: Officer arrested Driver for DWI. Officer asked Driver to provide a blood sample, and Driver agreed. While taking Driver to the place for a blood draw, Officer asked Driver whether he “really wanted to do this because I [Officer] don’t want to get all the way down there and then you don’t do it.” Driver then said he “didn’t want to do it.” Director suspended Driver’s license for refusal to submit to chemical testing. Driver testified that he did not believe that by answering Officer’s question, he was refusing the test and that he didn’t intend to lose his license. Trial court reinstated license. Director appealed.

Holding: The trial court found that because Driver had originally consented to the blood test, Driver did not “unequivocally refuse” a test. An inference can be made that Driver’s refusal was prompted by or influenced by Officer’s seemingly unnecessary inquiry into whether Driver really wanted to go through with the test. Such an inference reasonably casts doubt on whether Driver’s statement actually was a refusal. Not “wanting to” submit to the test and “refusing to” submit are distinguishable. Many drivers may not “want” to take the test, but take it to avoid revocation of their license.



State v. Avent, 2014 WL 1303418 (Mo. App. W.D. April 1, 2014):

Even though Officer testified that Defendant-Driver had glassy eyes, admitted to consuming beers, smelled of alcohol, failed a PBT test, and failed some sobriety tests, where there was also contrary evidence and trial court granted Defendant’s motion to suppress statements and evidence by finding there was no probable cause to arrest Defendant, the appellate court’s deferential standard of review requires that all credibility determinations and inferences be viewed in the light most favorable to the trial court’s ruling, and therefore, granting of motion to suppress is affirmed.

Facts: Defendant-Driver was stopped for speeding. Officer smelled alcohol, and had Defendant perform various field sobriety tests. Defendant passed the walk-and-turn test and one-leg-stand test, but failed the HGN test and PBT. Officer arrested Defendant, and read her Miranda warnings. Her BAC was ultimately tested and was greater than .08. Defendant filed a motion to suppress her statements and test results, on grounds that Officer had no probable cause to arrest her for DWI. The trial court granted the motion. The State appealed.

Holding: On appeal, the State cites evidence in the record that supports a finding of probable cause to arrest. However, this is contrary to the appellate standard of review, which allows the trial court to make credibility determinations and which views evidence and inferences in the light most favorable to the trial court’s ruling. Where the trial court makes no findings of fact, the trial court is presumed to have found all facts in accord with its ruling. The trial court will be deemed to have implicitly found contrary testimony not credible. Here, Defendant contested the State’s claim that she was intoxicated by cross-examining the Officer about favorable facts to her side of the case. The court was not required to find the Officer credible. Properly viewed in accord with the standard of review, although some facts showed intoxication, Officer observed several tests that did not indicate intoxication, Officer did not observe Defendant not have control of her vehicle (although she was speeding), Defendant complied with requests for identification and license, Defendant was not incoherent or confused or uncooperative, and her eyes weren’t impaired. The trial court weighed this evidence and determined there was no probable cause to believe Defendant was intoxicated. Judgment affirmed.
Rothwell v. Director of Revenue, 2013 WL 6447062 (Mo. App. W.D. Dec. 10, 2013):

Holding: Even though Driver initially refused to give a breath test at police station and requested an attorney, where Officer then took Driver to a hospital for a blood draw and Driver agreed to a blood draw and allowed blood to be taken, Driver did not refuse a chemical test under Sec. 577.041.

Discussion: Under Sec. 577.041 a license cannot be administratively revoked if Driver voluntarily submits to chemical testing that yields a satisfactory measure of Driver’s BAC whether Driver consents to chemical testing initially, or following initial refusal. However, should a driver initially refuse to submit to chemical testing, the arresting officer has the choice of either permitting the driver to withdraw his refusal and submit to chemical testing, or of letting the driver’s initial refusal stand as grounds to administratively revoke the license. Here, Officer chose to pursue additional testing and Driver ultimately voluntarily submitted to a test which obtained usable BAC results. Trial court’s reinstatement of license affirmed.
State v. Mignone, 2013 WL 5712452 (Mo. App. W.D. Oct. 22, 2013):

(1) As matter of first impression, standard of appellate review for dismissal of DWI charge pursuant to Sec. 577.037.5 is whether the trial court’s dismissal was “clearly erroneous”; (2) State bears burden of persuasion and burden of proof regarding a motion to dismiss under the statute; and (3) where properly administered breath test showed Defendant had a BAC of less than .08, trial court did not clearly err in sustaining a motion to dismiss, even though tests took place an hour or more after Defendant’s arrest.

Facts: Defendant was arrested for DWI at 3:06 a.m. He was administered a proper breath test at 4:38 that showed a BAC of .075%. He was administered a second test at 5:46 that showed a BAC of .051%. Defendant moved to dismiss under Sec. 557.037.5 on grounds that his BAC was less than .08%. The trial court dismissed. The State appealed.

Holding: Appellate courts have not heretofore promulgated a standard of review for reviewing dismissals pursuant to Sec. 577.037.5. The standard of review is whether the dismissal was “clearly erroneous.” The appellate court will reverse only if left with a “definite and firm impression that a mistake has been made.” Sec. 577.037.5 provides that where a Defendant shows that his BAC was less than .08%, his case “shall” be dismissed unless (1) there is evidence that the BAC test was unreliable, (2) there is evidence that Defendant was under the influence of drugs, or (3) there is substantial evidence of intoxication from physical observation of witnesses. Dismissal is the default position. Unlike an ordinary motion to dismiss where the defendant has the burden of persuasion, the clear implication of the statute is that the State has the burden of production and persuasion. Here, the State apparently argues that the dismissal was unwarranted because Defendant’s blood alcohol content was in decline since the time of his arrest. However, the State did not present any expert testimony that this would be the case, and this is not subject to lay opinion. The trial court was free to accept or reject the testimony presented by the State, and chose to reject it. It was not necessary for Defendant to present evidence, and he contested the State’s case via cross-examination. There was no evidence of erratic driving or evidence of intoxication. Dismissal affirmed.
Collins v. Director of Revenue, 2013 WL 1876622 (Mo. App. W.D. May 7, 2013):

Judge Gary Witt issued a concurring opinion questioning the reliability of breathalyzer test results in light of Missouri’s failure to adopt national standards or protocols ensuing the scientific reliability and credibility of test results. Excerpts:

“I write separately to emphasize the importance of the fifteen-minute observation period in reaching a scientifically reliable result on the breathalyzer test and to suggest that it may be time for the Missouri breath alcohol testing program protocols to be updated to comply with the standards in the industry. … [E]ven if the results of a breathalyzer test may be admissible … it is still the job of the finder of fact to determine the test result’s credibility or reliability. … [M]ost states have adopted protocols that require [an observation period for scientific reasons] … and that a suspected intoxicated driver be offered two separate breathalyzer tests [again for scientific reasons]. The National Safety Council … has made recommendations for ‘Acceptable Practices for Evidential Breath Alcohol Testing.’ The Council set forth ten recommendations … Missouri has failed to adopt many of these protocols that assist in ensuring the scientific reliability or credibility of the test results. The Director argues in this case that the test results [in this case] are entitled to a presumption of validity. The Majority accurately points out that this argument fails based on [our] statute [which was what the case was largely about], but the State’s argument also fails based on the science (emphasis added). … As the National Safety Council stated, ‘The significant weight assigned to breath alcohol test results, along with the serious consequences arising from conviction … require evidential breath alcohol testing programs to implement appropriate quality assurance measures.’ In the meantime, the reliability of and weight to be given to breathalyzer test results in Missouri clearly remains an issue for the trier of fact.”

State v. Brightman, No. WD74299 (Mo. App. W.D. 10/2/12):

Where in DWI case prosecutor argued to jury that State did not have to prove that Defendant was “drunk” but only that he was “intoxicated” and the jury could determine what that means, this misstated the law and lowered the State’s burden of proof because to convict, the jury had to find that Defendant’s use of alcohol impaired his ability to operate the vehicle.

Facts: Defendant was charged with DWI. In closing argument, the State argued that “we didn’t set out to prove today … that the Defendant was drunk. … We never proved – tried to go out and prove that he was drunk driving. We came here to prove that he was intoxicated. ... We are trying to prove beyond a reasonable doubt that he was driving and he was intoxicated. So what does that mean with the instructions? … [The definition there] is a very vague definition of ‘intoxicated condition’ which means under the influence of alcohol. There is a reason for that. The reason is that you can decide what it means.” Defense counsel objected to this as misstating the law, but was overruled. In defense counsel’s closing, defense counsel argued “that intoxication means that your ability to drive was,” but the prosecutor objected at that point and the trial court sustained the objection.

Holding: Missouri’s appellate courts have ruled that “intoxicated condition” for DWI purposes means that Defendant’s use of alcohol impairs his ability to drive the vehicle. The Western District recommends that the applicable MAI be changed to reflect this definition, but says that is for the Supreme Court to do. Here, however, the State’s closing argument effectively invited jurors to ignore the given instruction and substitute their own subjective understanding of “intoxicated condition” that did not include any level of drunkenness. Courts should exclude argument that misstates the law. The State contends on appeal that the prosecutor was trying to make the point that Defendant did not have to be “falling down drunk.” But that is not what the prosecutor argued or how a reasonable juror would understand the argument. When a term is not defined for the jury, the jury can decide what the term means. But here the State refused to acknowledge that being drunk and intoxicated are generally synonymous, and attempted to say the two were different concepts. The trial court compounded this confusion by sustaining the State’s objection to defense counsel’s closing argument which tried to correctly state the law. An objection to improper argument which is overruled has the impression of giving the court’s approval to the argument. Here, reasonable jurors could have understood the State’s argument to lower the State’s burden of proof on a key element of the offense. When the State misstates the law so as to lower the burden of proof, it is error. Here, the evidence of guilt was not overwhelming so Defendant was prejudiced. New trial ordered.
McKay v. Director of Revenue, No. WD74458 (Mo. App. W.D. 8/7/12):

Holding: Even though Driver refused to submit to a “breath test,” where she subsequently voluntarily consented to a “blood draw,” she did not refuse to consent to chemical testing under Sec. 577.041 and Director should not have suspended her license for failure refusal of chemical testing.
Harvey v. Director of Revenue, No. WD72606 (Mo. App. W.D. 5/9/12):

Holding: (1) Where trial court reinstated Driver’s license because Driver had alcohol soaked tobacco in his mouth when he gave his breath test and trial court believed Driver’s cross-examination that this would have affected the validity of BAC test, the appellate court defers to the trial court’s assessment of credibility; and (2) where a trial court enters a written judgment (even a generic one), an appellate court is not required to consider the court’s oral comments in reviewing the judgment.
Mapes v. Director of Revenue, No. WD73303 (11/8/11):

Even though Driver failed portions of a walk-and-turn test and HGN test, where Driver passed other field sobriety tests and the portable breath-test machine showed a BAC of .08, the trial court was free to believe as fact-finder that there was no probable cause to arrest Driver for DWI and to reinstate license, even though the case was tried on driving records and police reports only.

Facts: Driver, whose license had been revoked for failing to consent to a breath test, claimed there was not probable cause to arrest him for DWI.

Holding: Director had the burden to prove whether the Officer had reasonable grounds to believe Driver was driving while intoxicated so as to be able to arrest Driver. There was evidence before the trial court that Driver had passed several field sobriety tests, but had failed a walk-and-turn test and HGN test. Given that Driver passed several field sobriety tests, it was not unreasonable for the trial court to not give weight to the walk-and-turn test. Regarding the HGN test, there was no evidence presented to establish the procedures used to conduct the test, or the Officer’s qualifications to conduct it. Hence, the trial court was reasonable in not giving weight to the HGN test. Director claims that since the case was tried on documents only, the appellate court should re-weigh the evidence. However, the trial court acts as fact-finder, and the appellate court will not reweigh the evidence. There was substantial evidence supporting the trial court’s finding that there was not probable cause to arrest driver. Hence, his license is reinstated.
Secrist v. Treadstone, LLC, No. WD73250 (Mo. App. W.D. 11/1/11):

Even though Plaintiff had a THC (marijuana) level of 50 ng/ml in his blood, this fact by itself was not admissible (for comparative fault or impeachment) to show that Plaintiff was “impaired” at the time of his accident without more evidence of the significance of such statistic.

Facts: Plaintiff was injured in a construction accident and sued Defendant. The trial court admitted evidence that at the time of the accident, Plaintiff had a THC level of 50 ng/ml (marijuana) in his blood for purposes of comparative fault and impeachment. Plaintiff appealed an adverse verdict.

Holding: A prima facie case for impairment from alcohol has been set by statute, Sec. 577.012.1, and is established when BAC reaches .08%. Drug impairment, however, is different. Different drugs have varying effects on behavior, and do not necessarily produce readily recognizable symptoms and behavior. In State v. Friend, 943 S.W.2d 800 (Mo. App. W.D. 1997), a drug test of a defendant-driver revealed that driver had methamphetamine in his system. However, there was no testimony as to the amount of methamphetamine, the effect of it, or whether it would cause Defendant’s erratic behavior. Hence, the evidence was insufficient to convict because there was no evidence that the level of methamphetamine was sufficient to impair his driving. There must be evidence beyond the mere fact that a drug is present in someone’s system before a reasonable inference can be made that the person is impaired therefrom. The fact that Plaintiff tested positive for 50 ng/ml of THC means nothing without context. THC may remain in the blood for weeks after marijuana use, and THC levels are no indication of impairment. Evidence regarding abnormal behavior is not sufficient without some evidence that the behavior is consistent with identifiable symptoms of ingestion of the particular drug. Popular stereotypes regarding the characteristics and behaviors of drug users are not sufficient in a court of law. The trial court erred in admitting the THC level without evidence of (1) what effect that level of drug would reasonably have on that individual; (2) that the behaviors exhibited by that person were consistent with having the drug and the amount in his system; and (3) the proximity in time between when the drug was ingested and the events to which impairment is relevant. Additionally, the evidence was not admissible for impeachment. Although it is the rule that impairment of a witness’s ability to recall is relevant to credibility, the THC levels in the blood are not alone an indication of impairment and inability to recall. Judgment reversed.
Zahner v. Director of Revenue, No. WD72801 (Mo. App. W.D. 9/13/11):

Holding: Where (1) there was dispute between Officer and Driver about whether Driver was properly informed of Implied Consent Law, (2) Officer told court that he could produce a video to prove his version of events, and then (3) a week later, Officer said the video had been “destroyed as part of the post-arrest routine,” trial court was permitted to discredit Officer’s version of events due to the destruction of the video, even though the spoliation doctrine (which states that if a party intentionally destroys evidence, the party is subject to an adverse inference) does not apply to the Director of Revenue since when police destroy evidence, they don’t do so at the direction of the Director. However, trial courts may still consider destruction of evidence in determining witness credibility in a case. Judgment crediting Driver’s version of events and reinstating Driver’s license affirmed.
State v. Hatfield, No. WD72468 (Mo. App. W.D. 8/30/11):

Even though Officer found intoxicated Defendant in a driveway by a wrecked car, evidence was insufficient to convict of DWI because there was no showing that Defendant had driven the car while intoxicated, as opposed to become intoxicated later.

Facts: Officer was called to a home at 11:00 a.m. for a motor vehicle accident, and found a wrecked car parked in the home’s driveway. Defendant was next to it and was intoxicated. Officer asked what happened, and Defendant said, “I lost it making the turn.” Officer arrested Defendant for DWI. Defendant refused to provide a breath, blood or urine sample. Defendant was convicted of DWI at trial.

Holding: The evidence is insufficient to sustain a conviction for DWI because although the evidence showed that Defendant was intoxicated when standing by the car, there was insufficient evidence to prove that Defendant actually drove the car while intoxicated. Prior cases have made clear that where a Defendant is found outside the car, there must be some evidence linking in time the Defendant’s intoxication and operation of the motor vehicle. Here, there was no evidence as to the time Defendant drove the car, or how much time elapsed between the accident and the arrest. There was no evidence that the car was running, whether the keys were in the car, the temperature of the car’s motor, or other factors that would show that the car had recently been driven. The State argues that Defendant’s refusal to take a BAC test establishes consciousness of guilt for DWI. However, this reasoning has previously been rejected in another case where the court held that such a denial could not be regarded as highly probative of DWI where there is a lapse of time between the defendant’s driving and refusal, and the defendant’s apparent access to alcohol in the interim. DWI conviction reversed.
* Missouri v. McNeely, 93 Crim. L. Rep. 92, ___ U.S. ___ (U.S. 4/17/13):

Holding: In DWI cases, the natural dissipation of alcohol in Driver’s blood does not constitute an exigent circumstance in every case sufficient to justify a nonconsensual blood test without a search warrant.
U.S. v. Colon-Ledee, 2010 WL 6675045 (D.P.R. 2010):

Holding: Defendant’s conviction for failure to pay child support was not a crime involving dishonesty or false statement and, hence, could not be used to impeach Defendant’s credibility.

Fisher v. Ozaukee County Circuit Court, 2010 WL 3835098 (E.D. Wis. 2010):

Holding: Trial court’s application of general law prohibiting admission of preliminary breath test (PBT) results so as to preclude defense expert from testifying that Defendant’s BAC would have been lower violated right to present a defense.

State v. Allen, 92 Crim. L. Rep. 578 (Ark. 2/7/13):

Holding: 4^th Amendment does not allow state officials to stop boats for safety checks in the absence of reasonable suspicion or a plan with express, neutral limitations; Defendant had been charged with boating while intoxicated.
State v. Butler, 93 Crim. L. Rep. 313, 2013 WL 2353802 (Ariz. 5/30/13):

Holding: Even though State has an implied consent law for DWI, the voluntariness of Driver-Defendant’s consent must still be based upon the totality of the circumstances, not just invocation of the implied-consent law because Missouri v. McNeely (U.S. 2013) teaches that a blood draw in DWI is subject to 4^th Amendment constraints; here, Juvenile’s consent was not voluntary because his parents were not notified before the chemical test.
State v. Victor O., 2011 WL 2135671 (Conn. 2011):

Holding: Results of an Abel Assessment of Sexual Interest (Abel test), which purports to show sexual interest minors, were not sufficiently reliable in a nontreatment context to be admitted in criminal case.
Florida Dep’t of Highway Safety and Motor Vehicles v. Hernandez, 89 Crim. L. Rep. 477 (Fla. 6/9/11):

Holding: Driver can challenge the lawfulness of her arrest under the 4^th Amendment in a proceeding to suspend her driver’s license for failure to submit to blood-alcohol test.
Boring v. State, 2011 WL 2119377 (Ga. 2011):