DRIVING WHILE INTOXICATED LITIGATION

OUTLINE

H. MORLEY SWINGLE

JANUARY 15, 2000

I. OFFENSES

A. INVOLUNTARY MANSLAUGHTER (565.024)

B. ASSAULT 2ND DEGREE (565.060)

C. DWI THIRD - CLASS D FELONY (577.010)

D. DWI SECOND - CLASS A MISDEMEANOR (577.010)

E. DWI FIRST - CLASS B MISDEMEANOR (577.010)

F. BAC - CLASS C MISDEMEANOR (577.012)

G. CONSUMPTION OF ALCOHOLIC BEVERAGES WHILE OPERATING MOTOR VEHICLE - INFRACTION - (577.017)

H. ARMED CRIMINAL ACTION - Not applicable to DWI cases - State v. Hernandez, 815 S.W.2d 67 (Mo. App. 1991). (D, age 20, had collision with pickup driven by victim, 59 year old man. D's BAC was .13. D on wrong side of road -- Convicted of Involuntary Manslaughter and ACA; ACA conviction reversed).

I. SECOND DEGREE MURDER UNDER THE FELONY MURDER DOCTRINE MAY BE CHARGED IF DEFENDANT HAS ENOUGH PRIOR CONVICTIONS TO MAKE HIS DWI A FELONY AND SOMEONE IS KILLED AS A RESULT OF THE DWI. State v. Mayer, 3 S.W.3d 423 (Mo. App. E.D. 1999); State v. Brown, 996 S.W.2d 719 (Mo. App. W.D. 1999); State v. Pembleton, 978 S.W.2d 352 (Mo. App. E.D. 1998).

II. PRIOR CONVICTIONS

A. DEFINITIONS (577.023)

1. "A prior offender is a person whohas pleaded guilty to or has been found guilty of one intoxication-related traffic offense, where such prior offense occurred within five years of the occurrence of the intoxication-related traffic offense for which the person is charged."

2. "Persistent Offender" is a person who has pleaded guilty to or has been found guilty of two or more intoxication-related traffic offenses, where such two or more offenses occurred within ten years of the occurrence of the intoxicated-related traffic offense for which the person is charged.

3. SIS counts as prior conviction - 577.023.13

4. SIS may not be given for Prior or Persistent Offender - 577.023.4

5. Prior or Persistent Offenders may not get probation or parole until serving at least 48 consecutive hours in jail, or having at least 10 days of community service as condition of probation. 577.023.4.

6. Good discussion of SIS law: State v. Acton, 665 S.W.2d 618 (Mo. 1984); State v. Lynch, 679 S.W.2d 858 (Mo. 1984).

7. In past, Municipal Priors did not count for enhancement - A.B. v. Frank, 657 S.W.2d 265 (Mo. 1983); MODERN LAW allows municipal convictions to count if the municipal judge was an attorney and the D was represented by counsel or waived counsel in writing. Even Municipal SIS counts. State v. Meggs, 950 S.W.2d 608 (Mo. App. S.D. 1997). Municipal BAC counts. State v. Haskins, 950 S.W.2d 613 (Mo. App. S.D. 1997).

8. The requirement to prove that the D either had counsel or waived counsel and that the judge was an attorney only applies to municipal prior convictions, not state ones. Eaton v. Director of Revenue, 929 S.W.2d 282 (Mo. App. S.D. 1996); State v. Sparks, 916 S.W.2d 234 (Mo. App. S.D. 1995).

9. Using municipal priors that occurred prior to passage of State statute allowing their use as enhancement does not violate ex post facto prohibition. State v. Zoellner, 920 S.W.2d 132 (Mo. App. E.D. 1996).

10. Uncounseled Priors do not count unless defendant waived counsel: State v. Wilson, 684 S.W.2d 544 (Mo. App. 1984); Dover v. State, 725 S.W.2d 915 (Mo. App.1987)(fact that court record did not show that judge who accepted prior plea of guilty went through ritual of Rule 24.02 did not preclude use of the record toestablish D as prior offender).

11. Convictions From Other States can be used. State v. Ryan, 813 S.W.2d 898 (Mo. App. 1991); State v. McCoy, 815 S.W.2d 498 (Mo. App. 1991).

12. Director of Revenue Records are admissible to prove Prior DWI convictions. State v. Thomas, 969 S.W.2d 354 (Mo. App. W.D. 1998) (Instead of using certified court records, the State proved D’s 2 prior DWI convictions using only DOR records, which are admissible under 302.312, RSMo.); Dugan v. Director of Revenue, 979 S.W.2d 563 (Mo. App. W.D. 1998) (Unlike the business records statute, 302.312 does not require that all parties be served with copies of the records prior to trial; rather, the records shall be admissible if properly certified.).

13. Same priors used to make a repeat-offense DWI into A felony can be used to make the Defendant a prior & persistent offender thereby increasing the maximum Punishment from 5 to 10 years. Self v. State, 14 S.W.3d 223 (Mo. App. S.D. 2000).

14. QUESTION -- Is it the date of the occurrence of the previous DWI or the date of the plea or the date of the sentencing that must fall within 5 or 10 years in the prior & persistent time frames? Likewise, do you count the date the present DWI was committed, or the date the plea or finding of guilt occurs?

THIS USED TO BE A MATTER OF DISAGREEMENT IN THE CASES, BUT WAS ANSWERED BY STATUTE IN 1993 IN 577.023. "A prior offender is a person who has pleaded guilty to or has been found guilty of one intoxication-related traffic offense, where such prior offense occurred within five years of the occurrence of the intoxication-related traffic offense for which the person is charged."

15. Court, not jury, does punishment for prior offenders.

16. REIMBURSEMENT FOR COSTS OF ARREST -- As of July, 1992, the court may, in addition to other punishment, require the D to reimburse the state or local law enforcement agency which made the arrest for costs associated with the arrest, including "reasonable costs of making the arrest, including the cost of any chemical test, the costs of processing, charging, booking and holding such person in custody. The state and each local law enforcement agency may establish a schedule of such costs; however, the court may order the costs reduced if it determines that the costs are excessive. 577.048.

III. "OPERATING" ELEMENT

A. OLD LAW:

"As used in this chapter, the term 'drive', "driving", 'operates' or 'operating' means physically driving or operating or being in actual physical control of a motor vehicle." 577.001

NEW LAW:

"As used in this chapter, the term "drive", "driving", "operates" or "operating" means physically driving or operating a motor vehicle. 577.001 (Effective 1996)

B. "Operating" requires more than simply being in control of a running automobile, but it can be proven by circumstantial evidence. Baptist v. Lohman, 971 S.W.2d 366 (Mo. App. E.D. 1998) (D was spotted by a convenience store clerk as D sat upon the store’s parking lot in his truck for 30 minutes with the motor running. The clerk had not seen the truck pull onto the lot. Officers responded and found D slumped over the steering wheel, intoxicated. Sufficient proof.); Delzell v. Lohman, 983 S.W.2d 633 (Mo. App. S.D. 1999) (Restaurant manager spotted D setting behind steering wheel of car on parking lot, motor running. He had not been there 3 minutes before. Manager turned off the motor and called the police. D was intoxicated & admitted pulling onto lot. Proof sufficient.)

C. When Defendant is not observed driving and motor vehicle is not running, significant additional evidence of driving is needed. State v. Hughes, 978 S.W.2d 24 (Mo. App. W.D. 1998) (D’s car had been in one-car accident; motor was off and D was hiding in nearby truck when officer arrived; d’s was on bench seat of the car, his forehead was injured and there was a star crack on the windshield near the rearview mirror; D denied driving, claiming someone else had been driving but had fled. HELD: "Where a driver is inside a motionless vehicle and the engine is running, the driver is deemed to be in actual physical control of the vehicle thereby satisfying the "driving" element. However, where the defendant is not observed driving and the engine is not found running, only significant additional evidence of driving and the connection of driving can show actual physical control to supply the driving element." Such additional evidence might include "the location and position of the vehicle on or in relation to the roadway, key in the ignition, ignition turned on, engine compartment warm, other mechanisms running, admission of driving or drinking . . . and indications of how long the vehicle had been stopped." Evidence here was insufficient. Reversed.)

D. "Operating" includes sitting behind wheel in stopped car in park with motor running. State v. O'Toole, 673 S.W.2d 25 (Mo. Banc 1984); State v. Hollis, 800 S.W.2d 69 (Mo. App. 1990); State v. Dey, 798 S.W.2d 210 (Mo. App. 1990); State v. Nickerson, 763 S.W.2d 716 (Mo. App. 1989); State v. Stoltz, 816 S.W.2d 711 (Mo. App. 1991).

E. But, "operating" does not include sitting in car with motor not running. State v. Liebhart, 707 S.W.2d 427 (Mo. App. W.D. 1986); State v. Block, 798 S.W.2d 213, 216 (Mo. App. W.D. 1990).

F. "Operating" includes D asleep on passenger side with motor running and car in park. Taylor v. McNeill, 714 S.W.2d 947 (Mo. App. 1986).

G. "Operating" includes D sitting behind steering wheel head on passenger side, ignition on, car in park, partly on road. State v. Williams, 752 S.W.2d 454 (Mo. App. 1988).

H. "Operating" includes D sitting behind wheel of car in parking lot, keys in ignition, brake lights on, engine compartment warm, though engine not running, and car not there 40 minutes earlier. State. v. Hoeber, 737 S.W.2d 484 (Mo. App. E.D. 1987). (Liebhart distinguished).

I. WHERE - Unlike many traffic offenses, DWI involves operating a motor vehicle anywhere; not limited to roadways. State v. Weston, 202 S.W.2d 50 (Mo. 1947); Bertram v. Director of Revenue, 930 S.W.2d 7 (Mo. App. W.D. 1996).

IV. INTOXICATION ELEMENT

A. "As used in this chapter, a person is in an 'intoxicated condition' when he is under the influence of alcohol, a controlled substance, or drug or any combination thereof." 577.001

B. OPINION EVIDENCE may be admitted on intoxication issue of the opinion is given by person who has been exposed to intoxicated people before, and who had a "reasonable opportunity to observe the suspect." State v. English, 606 S.W.2d 207 (Mo. App. 1980) (Person giving opinion was 14 years old).

C. OPINION EVIDENCE AS TO INTOXICATION BY DRUGS will not be admitted unless witness is an expert. State v. Friend, 943 S.W.2d 800 (Mo. App. W.D. 1997) (D was driving on wrong side of I-70. Investigating officers immediately noticed his bizarre behavior, where he thought Mexicans were chasing him and that the officers were going to kill him. While in the holding cell, he was screaming, yelling, kicking at the ceiling, and punching the wall. HELD: The evidence was insufficient to convict because the State did not show that the Defendant was driving in a drugged condition. "For some unexplained reason, the chemist who had the necessary expertise did not testify as to the drug's effect on the defendant's driving ability," says the court, adding: "Drugs do not necessarily produce readily recognizable symptoms and behavior patterns. We are left to speculate whether the level of methamphetamine in the D's system was sufficient to cause the behavior described." The court points out that in similar cases, the State offered proof that the level of the drug was above the threshold level that could have an effect on sensory and motor perception, or proof that the driving ability of the D was impaired by reason of the drugs. See also State v. Meanor, 863 S.W.2d 884 (Mo. banc 1993), where court upheld conviction of driving under combination of alcohol and marijuana but specifically said the issue of whether the officer could give an opinion that the Defendant was intoxicated on drugs & alcohol was not before the court and had been answered in different ways in different jurisdictions.

D. EACH LAW ENFORCEMENT AGENCY SHOULD SEND OFFICERS TO TRAINING TO BECOME DRE'S (DRUG RECOGNITION EXPERTS). NHTSA has developed a standardized curriculum to train police officers as DRE's.

E. TO PURSUE THEORY THAT DEFENDANT WAS UNDER INFLUENCE OF A COMBINATION OF ALCOHOL AND A DRUG, THERE NEEDS TO BE EVIDENCE THAT INTOXICATION IS FROM BOTH DRUGS AND ALCOHOL. State v. Clarkston, 963 S.W.2d 705 (Mo. App. W.D. 1998). Defendant was a diabetic who was drinking and driving. At trial he claimed he had not been intoxicated but was merely suffering from a medical problem of a hypoglycemic reaction which gave the appearance of being intoxicated. The State took the position that he was in fact intoxicated, based upon a combination of both alcohol and "too much insulin." HELD: Although proof had been presented that Defendant was intoxicated due to alcohol, and that taking too much or too little insulin could heighten the effects of alcohol intoxication, there was no proof that he was intoxicated on a combination of alcohol and drugs. In fact, there was no evidence that one can even get intoxicated on insulin. Thus, conviction is reversed, but since the evidence can support a conviction upon alcohol alone it is remanded for new trial.

F. PERSON UNDER INFLUENCE OF PRESCRIPTION DRUGS MAY BE CONVICTED OF DWI. State v. Falcone, 918 S.W.2d 288 (Mo. App. S.D. 1996). Defendant had a traffic accident. She had no alcohol in her system, but had been taking a prescription drug, Lorazepam. She did poorly on field sobriety tests (swaying, having trouble balancing) and was talking to herself. She admitted taking Lorazepam three times a day, "just like the doctor told her." Chemical testing of her urine showed the presence of benzodiazepine, of which Lorazepam is a type. The chemist could only testify that it was present, though, and could not quantify it as being at a level that would ensure intoxication. HELD: DWI conviction affirmed. Drug intoxication may be proven when the evidence shows the D's ability to operate impaired in any manner, which this evidence shows. The same level of proof for alcohol intoxication would apply to drug intoxication, except that the .10 presumption for intoxication or nonintoxication is totally inapplicable.

G. Information charging Defendant with DWI by alcohol may be amended to charge DWI by drugs even after evidence has been presented. State v. Walter, 918 S.W. 2d 927 (Mo. App. E.D. 1996).

H. TIMING - Evidence must show intoxication at the time of the driving. State v. Kusch, 712 S.W.2d 457 (Mo. App. 1986); State v. Dodson, 496 S.W.2d 272 (Mo. App. 1973)(D ran off highway in one car accident; Witnesses came by and drove D home; D was at home 40 minutes later when police officer came by to talk to him; D's eyes bloodshot, unsteady on feet, smelled of alcohol, etc; D claimed he had not left home that night and had not been involved in accident; at trial D admitted accident, but said he'd had two bottles of beer before wreck, and 3 big drinks of whiskey when he got home; witness who had driven D home said he did not smell alcohol on D then; HELD: State did not prove D was driving while intoxicated; But cf. State v. Johnson, 670 S.W.2d 552 (Mo. App. 1984) (Where Court rejected the argument that the State should be required to present evidence precluding the possibility of subsequent intoxication); State v. Block, 798 S.W.2d 213 (Mo. App. 1990)(D drove thru yard of witness and hit back of witness's car, which was parked in driveway. Witness came out of house, asked if OK. D said yes, smelled like alcohol, and drove off. Witness was not asked if she was able to form an opinion as to whether D was intoxicated. Trooper got warrant for leaving the scene and found D at home and arrested him 2 1/2 hours later. D was intoxicated at time of arrest. HELD: Not enough proof that D was intoxicated at time he was driving).

I. NOTE -- If the blood alcohol is under .10 the case of DWI is to be dismissed with prejudice unless:

(1) Evidence that test was unreliable; or

(2) Evidence D was under the influence of controlled substance or combination of alcohol and controlled substance, or

(3) There is substantial evidence of intoxication from physical observations of witnesses or admissions of Defendant. 577.037.

State v. Buckler, 988 S.W.2d 565 (Mo. App. W.D. 1999). Although D’s BAC checked only .094%, the Missouri Highway Patrol Sgt. Who stopped him was an 18-year veteran of the patrol, who noted the strong odor of alcohol, the watery and bloodshot eyes, the poor performance on the ABC test, the walk-and-turn test, the one-leg stand and the horizontal gaze nystagmus test. HELD: The observations of the officer were sufficient to amount to "substantial" evidence of intoxication. Conviction affirmed.

V. CORPUS DELECTI NEEDED TO GET CONFESSION ADMITTED

A. GENERAL RULE: Extrajudicial admissions, statements or confessions of the accused, without independent proof of the corpus delecti, are not admissible in evidence.

B. Kansas City v. Verstraete, 481 S.W.2d 615 (Mo. App. 1972) - Police did not see D driving, he was 50 to 70 feet from car, in a large crowd, apart from his admission there was no evidence that he had been driving; HELD - Corpus delecti not proven, statement not admitted.

C. CORPUS DELECTI IN DWI ESTABLISHED SUFFICIENTLY TO ALLOW CONFESSION BY EVIDENCE THAT SOMEONE OPERATED A MOTOR VEHICLE WHILE INTOXICATED. State v. Girdley, 957 S.W.2d 520 (Mo. App. S.D. 1997). Defendant, prosecuted for DWI, claimed his confession should not be admitted since the State had not sufficiently proven the corpus delicti of the crime. The State had shown that the trooper responded to a call about an accident that had just happened; he saw skid marks leading up to a car in a ditch; Defendant was sitting behind the driver's wheel, asleep; keys in ignition but motor not running; no alcoholic beverages in or around vehicle; Defendant's eyes were red with dilated pupils and strong smell of alcohol. HELD: The corpus delicti of driving while intoxicated consists of evidence that someone operated a motor vehicle while intoxicated. Proof of the corpus delicti need not include proof of the Defendant's connection with the crime charged before admitting his confession. In order for Defendant's statement to be admissible, absolute proof that a crime was committed independent of his statement is not required. All that is required is evidence of circumstances tending to prove the corpus delicti corresponding with the confession. Slight corroborating facts are sufficient to establish the corpus delicti. Thus, it was proper to admit Defendant's confession that he had been driving and was taking the back roads because he believed he was "under the influence." See also State v. Hammons, 964 S.W.2d 509 (Mo. App. W.D. 1998) (Defendant was only person standing by flipped-over car when officer arrived, saw the skid marks, Defendant's intoxication, lack of other intoxicants in area, and Defendant wearing Superman suit coming home from Halloween party).

D. State v. Friesen, 725 S.W.2d 638 (Mo. App. 1987) - D standing with another person outside pickup stuck in culvert, D said, "I overshot driveway." No evidence about keys or anything else. Other person made no comment at all. HELD - Not enough corpus delecti for the confession to be admissible.

E. State v. Cook, 711 S.W.2d 208 (Mo. App. 1986) - D was changing tire on car in ditch next to roadway, D's sister-in-law is in passenger seat; D sits in car twice on driver's side w/o needing to adjust seat, numerous empty beer cans in bed of truck, D admits driving, "I had blowout on this tire, and it took me to the ditch." HELD: Sufficient corpus delecti for admission of statement.

F. State v. Hunziker, 638 S.W.2d 333 (Mo. App. 1982) - Police did not see accident, a rear end collision, but D was one of few people at scene; victim's Vega taillight was in grill of D's car; D apologized to victim for falling asleep at wheel. HELD: Sufficient corpus delecti to allow in D's confession to police. Distinguishes Verstraete as Verstraete having "absolutely no additional evidence (absent D's statement) that D was driving."

G. State v. Johnson, 670 S.W.2d 552 (Mo. App. 1984) - D's car in ditch, front against fence, rear on road, 10 to 15 feet of damage on fence, 62 feet of skid marks leading to car; D was behind steering wheel, trying to back out of ditch; D's breath smelled of alcohol, eyes bloodshot, face flushed; D admitted he had lost control of car and had drank 3 beers. HELD: Sufficient corpus delecti to allow the admissions.

H. State v. Easley, 515 S.W.2d 600 (Mo. App. 1974) - Intersection accident, D two feet from car, accepted keys to car. HELD: Sufficient evidence to allow in confession.

I. State v. Stimmel, 800 S.W.2d 156 (Mo. App. 1990) - Trooper responded to one-vehicle accident, car is at edge of westbound lane on I-44, with its rear end in the median. Tire tracks led from eastbound lane to position of car. D was standing next to the car and two other men stood off to one side. When trooper got the there other two men each got in separate cars and drove off. Trooper noticed strong odor of intoxicants on D's breath, face was flushed. Trooper asked what happened and D said he had been driving and another car ran him off the road. His speech was slurred. HELD: Sufficient corpus delecti that someone had been driving and lost control of vehicle to let in D's admission that he had been driver.

J. State v. Tillman, 823 S.W.2d 43 (Mo. App. E.D. 1991) - Policeman saw jeep driving on wrong side of road, veer across its own lane, go off road and overturn. Two occupants thrown out. Both reeked of alcohol. Officer asked who was driving, and D said, "I was." HELD: The corpus delecti that someone was driving and lost control was established sufficiently to allow the admission of D.

VI. CHEMICAL TESTS

A. TWO TESTS.

1. Under the implied consent statute, the Defendant must consent to as many as two tests.

2. A portable breath test does not count as one of the two tests. Baker v. Director of Revenue, 945 S.W.2d 589 (Mo. App. E.D. 1997).

3. A portable breath test result is only admissible for probable cause, not as proof of guilt at the trial. State v. Hanway, 973 S.W.2d 892 (Mo. App. W.D. 1998) (At trial, the officer told the jury about the results of a portable breath test. HELD: error, but harmless error so conviction upheld.)

4. Officer may request two tests and if DWI suspect refuses either test he may have his license suspended for the refusal. Snow v. Director of Revenue, 935 S.W.2d 383 (Mo. App. S.D. 1996).

B. BREATH TESTS

1. Judicial Notice of Scientific Principles – The breathalizer machine is considered a reliable device for measuring intoxication. State v. Becker, 429 S.W.2d 290 (Mo. App. 1968).

2. Chemical Tests Must be performed according to methods approved by the Division of Health. 577.020 & 577.026; The regulations governing the administration of breath tests are set out at 19 C.S.R. 20-30.011 to 20-30.060. Since 1988, the regulations have required the breath analyzer to undergo a maintenance test "at intervals not to exceed 35 days." Until 1988, if State showed that breath test was administered in accordance with Dept. of Health regulations by a person with Type III permit, prima facia case for introduction of the test into evidence was made; Type II operator was not needed re maintenance of the machine, and would be needed only if some evidence was offered that the machine was malfunctioning. UNDER NEW LAW, though, the foundation requirements include evidence that a maintenance check was done within 35 days of the test -- if no objection by the defense, the PA does not need to put on evidence of the maintenance test, but if the defense does object, the PA needs to put on evidence of the maintenance check before the results of the test are admissible. Sellenriek v. Director of Revenue, 826 Mo. En Banc 1992).

3. Breathalyzer maintenance records are admissible as Business records. Thomas v. Director of Revenue, 875 S.W.2d 582 (Mo. App. W.D. 1994). Officer who did not do the maintenance test and who is not a custodian of the records cannot lay a sufficient foundation for their admission. Schmitz v. Director of Revenue, 889 S.W.2d 883 (Mo. App. S.D. 1994).

4. It doesn't matter if more that 35 days elapsed at some point in the past history of the machine, as long as a maintenance check had been done within 35 days of the present test. Sellenriek, supra; McClimans v. Director of Revenue, (E.D. No. 59634 1992).

5. A foundation requirement for admission of a breathalyzer test result is that "an approved standard simulator solution was used to verify and calibrate" the machine. The material used for verification and calibration must be certified by the manufacturer and this certification must accompany the maintenance report. Divine v. Director of Revenue, 961 S.W.2d 87 (Mo. App. E.D. 1997); Van Wagner v. Director of Revenue, 954 S.W.2d 647 (Mo. App. W.D. 1997). The certificate of the manufacturer qualifies as a business record. Overman v. Director of Revenue, 975 S.W.2d 183 (Mo. App. E.D. 1998). But, the proof has to show that the certificate is from the manufacturer of the solution, not some other company. McDonough v. Director of Revenue, 977 S.W.2d 278 (Mo. App. E.D. 1998). It is sufficient to show by business record affidavit from the law enforcement agency that the "certificate of analysis was supplied with the simulator solution." Trumble v. Director of Revenue, 985 S.W.2d 815 (Mo. App. E.D. 1998).

6. The Breathalyzer test results are generally accepted as reliable and admissible if the test was administered by a law enforcement officer possessing a valid Division of Health permit who performs the test in accordance with the methods approved by the Division of Health. 577.020 & 577.037.4. Bush, supra.

7. DISCOVERY - Section 577.020.6 requires full information concerning the test be supplied to the person tested upon request. State v. Clark, 723 S.W.2d 17 (Mo. App. 1986).

C. BLOOD TESTS

1. 577.029 - Blood may be withdrawn by medical personnel (physician, nurse, trained medical technician) at request of law enforcement officer, unless in good faith medical judgment the procedure would endanger the life or health of D; A "previously unused and sterile needle and sterile vessel shall be utilized and the procedure shall otherwise be in strict accord with accepted medical practices. A nonalcoholic antiseptic shall be used for cleansing the skin prior to venipuncture."

2. 577.026 - Chemical tests of blood shall be performed according to methods and devices approved by the Dept. of Health.

3. 577.020 - Implied Consent statute – Consent implied to 2 tests. (If D conscious, consent may be withdrawn under 577.041.) State Dept. of Health to approve techniques and establish standards. The person tested may have a physician etc of his own choosing and at own expense do an additional test, but failure to do so does not make the others inadmissible.

4. Search Warrants may be obtained for sample of D's blood if D has refused to submit to blood test. State v. Trice, 747 S.W.2d 243 (Mo. App. 1988); State v. Stottlemeyer, 752 S.W.2d 840 (Mo. App. 1988).

5. Search warrant may be obtained for results of blood tests taken for medical purposes, since the doctor-patient privilege does not apply due to 577.037 (which says that in DWI cases blood alcohol tests are admissible, doctor-patient privilege 491.060 notwithstanding). State v. Waring, 779 S.W.2d 736 (Mo. App. S.D. 1989); State v. Todd, 935 S.W.2d 55 (Mo. E.D. 1996).

6. Hospital blood test may also come in under business records statute, but must be interpreted by expert. State v. Todd, 935 S.W.2d 55 (Mo. App. E.D. 1996). D was convicted of two counts of involuntary manslaughter in connection with a DWI-fatality. D had been taken to the hospital immediately after the crash. His blood was drawn for testing by the hospital. The test showed blood alcohol level of .11 which was introduced via a business record affidavit accompanying the lab report. The medical examiner, a doctor, testified as an expert witness as to the meaning of a .11 blood alcohol reading. D claims the blood test results were not admissible since the implied consent procedures set out in 577.020 to 577.041 were not followed. HELD: "The requirements and protection provided by the implied consent law do not apply to all blood tests offered as evidence but only to those offered pursuant to Chapter 577." This was not a prosecution under Chapter 577 (DWI), but 565 (Offenses Against the Person). Thus, the lab test result from the hospital was admissible as a business record.

7. State v. Faust, 709 S.W.2d 121 (Mo. App. 1986) - Lab report of blood alcohol was admitted at trial for DWI even though chemist could not be there as a business record, when all requirements of business record met.

8. State v. Setter, 763 S.W.2d 228 (Mo. App. 1988) - Foundation requirements for drawing & admitting blood test results are clear and easy to meet under 577.029 - "previously unused and sterile needle & sterile vessel shall be utilized" requires strict and literal compliance, and prosecution required to lay that foundation or reversible error; Dept. of Health has enacted 19 C.S.R. 20-30.070 (1988) which provides that blood samples must be taken in accordance with 577.029.

9. State v. Hanners, 774 S.W.2d 568 (Mo. App. 1989) - Foundation requirements for drawing & admitting blood test results are clear and easy to meet under 577.029 - "previously unused and sterile needle & vessel" and "nonalcoholic antiseptic for cleansing prior to venipuncture" HELD: PA did not put on evidence of sterile needle & vessel, and nurse had originally used an alcoholic antiseptic before realizing mistake and washing off. Reversed.

10. Moore v. Director of Revenue, 811 S.W.2d 848 (Mo. App. 1991) - Packaging on unopened needle and vacuum tube labelling them as "sterile" and label on antiseptic solution saying it contained "no alcohol" were exception to hearsay rule because of probability of trustworthiness. Results of blood test were properly admitted.

11. State v. Parker, 817 S.W.2d 920 (Mo. App. 1991) - Vacuum tube from MSHP stock and needle from hospital, neither of which were in packages marked sterile, did not meet the Moore test and no other evidence of sterility on record. (MSHP testimony that tube was "straight from the factory" and phlebotomist's testimony that needle was in an unopened package not enough.

12. Nesbitt v. Director of Revenue, 982 S.W.2d 783 (Mo App. E.D. 1998). State did not call the medical technician to lay the foundation for the .10 blood sample; rather, the trooper merely testified that this was a hospital phlebotomist who had drawn blood for hi many times. HELD: Trooper’s testimony was not sufficient evidence that this person was a licensed physician, registered nurse or trained medical technician. Driver’s license suspension reversed.

13. State v. Kummer, 741 S.W.2d 285 (Mo. App. 1987) - Dept of Health has now adopted regulations dealing with taking blood (19 C.S.R. 20-30.070) and blood tests are thus admissible if regulations followed, even if blood testing occurred prior to enaction of these regulations. NOTE: State v. Peters, 729 S.W.2d 243 (Mo. App. 1987) thus distinguished, because in Peters the Dept. of Health had not yet enacted its regulations so the blood sample was not admissible.

14. 19 C.S.R. 20-30.070 (1988) says (1) blood samples are to be taken in accordance with 577.029; (2) blood sample shall be collected in a clean, dry container that has an air-tight inert stopper, but if whole blood or plasma is required, an anticoagulant may be used that is appropriate for the test method being employed (3) a sufficient volume of blood shall be collected for duplicate testing; (4) approved tests include chromatographic tests; spectrophotometric or colormetric measurement of the conversion of alcohol to acetaldehyde by alcohol-dehydrogenase; or quantitative determination of reduction of dichromate in acid solution by ethanol.

15. Urine tests -- 19 CSR 20-30.070 state that urine sample shall be collected in a clean, dry container that has an air-tight, inert stopper; "Urine specimens shall be refrigerated immediately after collection or a preservative may be used that is appropriate for the test method being employed;" and a sufficient amount shall be taken to allow for duplicate testing. NOTE: State v. Regalado, 806 S.W.2d 86 (Mo. Ap. 1991) - D was in wreck, unconscious at hospital. Trooper had urine sample drawn and he put it in his patrol car, but had to report to another accident, and did not get sample into refrigerator for two hours. HELD: This was not in compliance with regulation's word "immediately" absent proof that the 2 hour delay did not result in the urine sample's "substantial decomposition."

16. HORIZONTAL GAZE NYSTAGMUS TEST - State v. Hill, 865 S.W.2d 702 (Mo. App. W.D. 1993). Missouri accepts the Horizontal Gaze Nystagmus test as being sufficiently reliable to be admissible as evidence of intoxication. Meets Frye standard of scientific reliability. HOWEVER, in Missouri the officer who gives the test, in order for it to be admissible in court, must have had a minimum of 8 hours of training on how to administer and interpret the HGN test.

17. FIELD SOBRIETY TESTS - Routine field sobriety tests of (1) alphabet; (2) heel-to-toe; (3) balance- swing; (4) finger to nose, do not require scientific proof of reliability. These tests were not offered as scientific proof of sobriety, but to show that the officer had probable cause for the arrest. Nuyt v. Director of Revenue, 814 S.W.2d 690 (Mo. App. E.D. 1991).

VII. ARREST

A. General Arrest Statute - 544.216 - Any sheriff, deputy, highway patrolman or municipal police officer (except pop. less than 2,000 or dept. does not have 4 fulltime officers) may arrest on view, without warrant, any person he sees violate or who he has reasonable grounds to believe has violated, any law of this state, including a misdemeanor, or has violated any ordinance over which he has jurisdiction.

B. 20 HOUR RULE - All persons arrested without warrant must be charged or released within twenty hours. It is a misdemeanor to violate this law. 544.170.

C. 90 MINUTE RULE IN DWI - Unlike all other crimes, DWI arrests without warrant must be made within 90 minutes of the violation. 577.039. Collette v. Director of Revenue, 717 S.W.2d 551 (Mo. App. 1986). By its terms, this provision is only applicable to arrests for DWI (577.010) or BAC (577.012). It does not apply to involuntary manslaughter. State v. Setter, 721 S.W.2d 11 (Mo. App. 1986). Nor does it apply to municipal ordinance violations. Strode v. Dir. of Revenue, 724 S.W.2d 245 (Mo. En Banc 1987). ALSO, D must inject the issue that the proof was not within 90 minutes, it is not something the state must prove as a part of its case unless the D injects the issue. State v. Litterell, 800 S.W.2d 7 (Mo. App. 1990). Finally, in 1996 the statute was amended so that the 90 minute rule does not apply when the defendant has left the scene of an accident or has been removed from the scene to receive medical treatment.

D. 12 HOUR HOLD FOR DRUNKS - A person who appears to be intoxicated may be taken by a peace officer to that person's residence, to any available treatment center, or to any other appropriate local facility, including a jail, for custody not to exceed 12 hours. 67.315.

E. PROBABLE CAUSE - Obviously, the arrest must be based upon probable cause. PROBABLE CAUSE IS EVALUATED IN THE CONTEXT OF WHETHER THE FACTS AND CIRCUMSTANCES WOULD WARRANT A MAN OF REASONABLE CAUTION TO BELIEVE AN OFFENSE HAS BEEN COMMITTED. IT MUST BE IN RELATION TO THE CIRCUMSTANCES AS THEY WOULD HAVE APPEARED TO A PRUDENT, CAUTIOUS AND TRAINED POLICE OFFICER. Thus, D being asleep, parked in a car with the motor running with vehicle on road in opposite lane of traffic, who admitted drinking 6 to 8 beers and failed field sobriety tests, is probable cause. Stoltz v. Director of Revenue, 816 S.W.2d 711 (Mo. App. 1991). Nor does the D have to be driving erratically. Thus, D was seen staggering from a store to his pickup, which he started and drove two blocks. After he was pulled over, officer detected strong odor of intoxicants, saw that eyes were bloodshot and watery, and speech slurred. D failed field sobriety tests and was arrested. Sufficient probable cause. State v. West, 825 S.W.2d 402 (Mo. App. 1992). (Actually proper analysis is that it was reasonable suspicion for a Terry stop, followed by establishment of probable cause after evidence of alcohol was noted.)

VIII. REFUSAL OF BREATH TEST ADMISSIBLE IN DWI

A. "If a person under arrest refuses upon request of the arresting officer to submit to any test allowed under 577.020, then none shall be given and evidence of the refusal shall be admissible in a proceeding under 577.010 or 577.012." See also State v. Stevens, 757 S.W.2d 229 (Mo. App. 1988); State v. Deleal, 911 S.W.2d 639 (Mo. App. E.D. 1995).

B. By statutory law, effective July 1992, a Defendant has 20 minutes to try to contact his attorney before he must submit to the test or be deemed to have refused. 577.041.1.

IX. SEARCH WARRANTS MAY ISSUE FOR BLOOD OR URINE

A. State v. Trice, 747 S.W.2d 243 (Mo. App. 1988); State v. Stottlemeyer, 752 S.W.2d 840 (Mo. App. 1988).

B. AND FOR RESULTS OF BLOOD TEST TAKEN FOR MEDICAL REASONS. State v. Waring, 779 S.W.2d 736 (Mo. App. 1989).

X. RIGHT TO COUNSEL

A. Missouri Supreme Court has held there is no constitutional right to consult with counsel prior to deciding whether or not to submit to a breathalyzer test. Spradling v. Deimeke, 528 S.W.2d 759 (Mo. 1975). See Comment, "Right to Counsel Prior to Submission to Breathalyzer Test - The Impact of Missouri Supreme Court Rule 37.89, 42 Mo. L. Rev. 168 (1977).

B. Missouri Courts have held, though, that a right to consult with counsel prior to deciding whether to consent to chemical testing exists, Deimeke, but offering the use of a telephone is enough says Curry v. Goldberg, 614 S.W.2d 318 (Mo. App. 1981); the right does not extend to have an attorney present during the test, Deimeke; unless the attorney is already at the test location, Curry; Deimeke (if lawyer arrives before or during test, suspect has a right to have the attorney present).

C. Kilpatrick v. Dir. of Revenue, 756 S.W.2d 214 (Mo. App. 1988) is a good recent case. D said he wanted to talk to lawyer before taking test, called his lawyer three times but could only get answering service. Police policy was to allow 20 minutes for D to get a lawyer to the station before requiring suspect to decide to take test or refuse it. Court reaffirms that suspect does not have constitutional right to consult with lawyer before deciding whether to take breath test, nor does he have the right to have counsel present at such a test, or to condition his consent to take the test on the presence of his attorney, but does have a limited right to consult with counsel. HELD: This limited right honored by allowing him to try to telephone his lawyer, and by giving him 20 minutes to locate the lawyer. He had a reasonable opportunity to consult, and that is all that is required.

D. By statute now, D has 20 minutes to try to get to talk to his attorney before deciding to take the test 577.041.1, RSMo.

XI. MIRANDA WARNING

A. The need for Miranda warnings depends upon the nature of the interrogation, i.e., whether it is custodial. While routine traffic stops not resulting in custody are not occasions for Miranda warnings, once such a stop becomes custodial, the warnings are required. Berkemer v. McCarty, 468 U.S. 420, 82 L.Ed.2d 317 (1984) (holding that Miranda warnings are required for misdemeanor traffic cases when D is in custody, but roadside questioning of a motorist does not constitute being in custody for a traffic misdemeanor).

B. State v. Bradley, 670 S.W.2d 123 (Mo. App. 1984) -Car wreck, one person dead; Suspect is still in his car, beer cans in car, spilled beer in car, alcohol on D's breath. Police officer asked if D had been drinking, and he said, "Yeah, a lot." He asked him where, and D said, "All over." HELD: Admissible. Miranda warnings not required. D not in custody. "A mere suspicion in the officer's mind was not enough to make the questioning custodial."

C. State v. Chapman, 724 S.W.2d 714 (Mo. App. 1987) - Trooper responded to pickup truck in creek 20 feet off road. D and 2 others were sitting on the bridge. Others said D had been driving. D seemed intoxicated. Trooper arrested D, took to station. Questioned D without reading rights. HELD: Berkmemer v. McCarty requires that a person subjected to custodial interrogation is entitled to the benefit of Miranda warnings, regardless of the nature of the offense for which he was arrested.

XII. DWI ROADBLOCKS

A. DWI roadblocks are constitutional in Missouri, and do not violate the 4th amendment as long as long as sufficient guidelines exist to be sure the officers are not using it as a pretext to stop specific targeted cars, but rather are following a specific pattern (such as every other car) and as long as the intrusion to innocent people remains minimum. State v. Welch, 755 S.W.2d 624 (Mo. App. 1988); State v. Payne, 759 S.W.2d 252 (Mo. App. 1988). Good case note at 54 Mo. L. Rev. 1 (1989). Michigan Dept. of State Police v. Sitz, 496 U.S. 444 (1990).

XIII. EXPUNGEMENT OF RECORDS

1. 577.054, RSMo. 1991 -- After a period of not less than 10 years, an individual who has pleaded guilty to or been convicted of a first DWI, may apply to the court in which he pled or was sentenced for an order to expunge from all official records all recordations of his arrest, plea, trial or conviction. "If the court determines, after hearing, that such person has not been convicted of any alcohol-related driving offense in the 10 years prior to the date of the application for expungement, and has no other alcohol-related enforcement contacts during that 10 year period, the court shall enter an order of expungement." A person shall only be entitled to one expungement pursuant to this section.

2. Fowler v. Director of Revenue, 823 S.W.2d 134 (Mo. App. 1992). D had been convicted of BAC in 1979. On 9.25.90 he got a DWI ticket. He attended an administrative hearing on that ticket on 11/26/90, regarding suspension of his driver's license. After the hearing, he received notice that his driver's license would be suspended on 12/10/90. D filed his motion for expungement. It was granted by the trial court, but reversed on appeal, since the formal action taken by the department to suspend D's license would be an "alcohol-related enforcement contact" making D ineligible to have the expungement.

XIV. ABUSE & LOSE - 577.500

1. No change to Abuse & Lose as it applies to persons over 21 years of age. (D has violated state or municipal law involving possession or use of controlled substances while operating a motor vehicle.)

2. Effective June 20, 1991, Abuse & Lose as to persons under 21 now only causes loss of license for 90 days for 1st offense, rather than full year. Five categories: (1) Any alcohol related traffic offense; (2) Possession of alcohol while operating a motor vehicle; (3) Any offense involving possession or use of a controlled substance; (4) Any offense involving the alteration, modification or misrepresentation of a driver's license; (5) Any offense involving possession of alcohol second offense, even if no vehicle involved. SECOND offense still one year suspension.

3. As of July 1, 1992, Abuse & Lose applies to municipal offenses, too.

4. No need to include wording about "operation" of vehicle in a drug charge for Abuse & Lost to apply. State v. Stokes, 814 S.W.2d 702 (Mo. App. 1991); State v. Rehm, 821 S.W.2d 127 (Mo. App. E.D. 1992).