criminal HGN

Criminal Case Law 2016-Present

Criminal Cases (State):

No Prejudice Shown

 Statev. Sykes, 579 S.W.3d 231, 233 (Mo. App. S.D. 2019):

Defendant Sykes after being convicted for Assault 2nd appealed alleging that the trial court erred in permitting a highway patrolman to opine that Defendant was driving a truck when it collided with a car. The Defendant asserted that the officer’s opinion that he was driving was not based on sufficient facts or data, and was not the product of reliable principles and methods reliably applied to the facts of the case as required by section 490.065.2 for expert testimony.   In rejecting the Defendant’s contention and  affirming the trial court’s judgment the COA determined that the testimony of the officer was not prejudicial because it was cumulative in that there was other evidence from which the jury could determine that Defendant was driving the truck without the officer’s testimony. First, there were only two people in the truck at the time of the accident both of who said they were not driving. Defendant was not ejected from the truck and had significant bleeding. Further, the jury heard factual testimony that the only DNA profiles prepared from swabs of the interior of the truck showed that Defendant’s blood which could lead the jury to conviction.

Exigent Circumstances Needed for Warrantless Blood Draw

State v. Osborn 591 S.W.3d 1 (Mo. Ct. App. W.D. (Mem)

Nathaniel Osborn appealed a judgment finding him guilty of two counts of assault in the second degree on the basis that the circuit court erred in admitting evidence related to a warrantless blood draw over his objection at trial. After re-transfer from the Missouri Supreme Court with instructions to reconsider pursuant to Mitchell v. Wisconsin, ––– U.S. ––––, 139 S. Ct. 2525, 204 L.Ed.2d 1040 (2019), the Court of Appeals AFFIRMED. 

Mitchell v. Wisconsin, ––– U.S. ––––, 139 S. Ct. 2525, 204 L.Ed.2d 1040 (2019)

Mitchell was convicted which the Supreme Court of Wisconsin, affirmed and the U.S. Supreme Court granted certiorari.  The Supreme Court determined that the exigent-circumstances rule almost always permits a blood test without a warrant in what they declared was a “narrow but important category of cases”where the driver is unconscious. In making its determination, the Court determined that: “it is very likely that the driver would be taken to an emergency room and that his blood would be drawn for diagnostic purposes even if the police were not seeking BAC information.” The basis for allowing this exception in such a “narrow but important category of cases” is that of the implied consent which, according to the Court, “deems drivers to have consented to breath or blood tests. if an officer has reason to believe they have committed one of several drug- or alcohol-related offenses.”  The Supreme Court citing  Missouri v. McNeely, 569 U.S. 141, 149, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013)went on to declare that “under the exception [those involving unconscious drivers] for exigent circumstances, a warrantless search is allowed when “ ‘there is compelling need for official action and no time to secure a warrant.”  The Supreme Court went on to declare that:

The importance of the needs served by BAC testing is hard to overstate. The bottom line is that BAC tests are needed for enforcing laws that save lives. The specifics, in short, are these: Highway safety is critical; it is served by laws that criminalize driving with a certain BAC level; and enforcing these legal BAC limits requires efficient testing to obtain BAC evidence, which naturally dissipates. So BAC tests are crucial links in a chain on which vital interests hang. And when a breath test is unavailable to advance those aims, a blood test becomes essential.

Mitchell v. Wisconsin, ––– U.S. ––––, 139 S. Ct. 2525, at 2533,  204 L.Ed.2d 1040 (2019).

In making the above determination, The Supreme Court falls back on its decision in Schmerber v. California, 384 U.S. 757, 765, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) declaring that: “[T]he dissipation of BAC did justify a blood test of a drunk driver whose accident gave police other pressing duties, for then the further delay caused by a warrant application would indeed have threatened the destruction of evidence.”  According to the Supreme Court, “A driver’s unconsciousness does not just create pressing needs; it is itself a medical emergency.” And while, according to the Court,  the time needed to secure a warrant may have shrunk over the years, it has not disappeared; and forcing police to put off other urgent tasks for even a relatively short period of time may have terrible collateral costs. See Mitchell v. Wisconsin, ––– U.S. ––––, 139 S. Ct. 2525, at 2534,  204 L.Ed.2d 1040 (2019).

No Miranda Warning Due Before Admitting to A Few Drinks

State v. Harris, 581 S.W.3d 711 (Mo. Ct. App. E.D. 2019)

Following a bench trial, defendant was convicted of misdemeanor driving while intoxicated. 

The Court starts its analysis in this case with the notion that “Missouri defines ‘custodial interrogation’ as questioning initiated by a law enforcement officer after taking an individual into custody or otherwise depriving the individual of his freedom of action in any significant manner.” 581 S.W.3d 711, 714 (Mo. Ct. App. E.D. 2019). In determining whether an individual is in custody for purposes of Miranda, the Court must consider the totality of the circumstances and inquire under the case-specific circumstances whether a reasonable person would have understood the situation to be one of police custody. The Court went on to declare that: “Ordinary traffic stops are non-coercive in nature and therefore do not involve custody for purposes of Miranda.”  581 S.W.3d 711, 714 (Mo. Ct. App. E.D. 2019).  The Court went on to consider the theory espoused by Harris that he was in custody for purposes of Miranda because he was physically restrained in the ambulance by paramedics when the arresting officer asked whether he had been drinking. 581 S.W.3d 711, 715 (Mo. Ct. App. E.D. 2019). The Court declared the physical restraint alone does not invoke Miranda protections, and physical restraint imposed by paramedics does not create the inherently coercive environment contemplated by Miranda. 581 S.W.3d 711, 715 (Mo. Ct. App. E.D. 2019).  The facts, according to the Court clearly establish that paramedics not the arresting officer restrained Harris at the scene of his motor vehicle accident in order to provide medical treatment, nor did the arresting officer direct the paramedics to restrain Harris.  As a result, Harris was not subjected to custodial interrogation under Miranda. 581 S.W.3d 711, 715 (Mo. Ct. App. E.D. 2019).  The Court declared that the record presents substantial evidence to support the trial court’s ruling that Harris was not in custody for purposes of Miranda to warrant suppression of his statement.

Consent Not Withdrawn:

State v. Reeter, 582 S.W.3d 913 (Mo. Ct. App. W.D. 2019) 

This matter came before the COA from a bench trial where the defendant was convicted of driving while intoxicated (DWI).  Reeter argued on appeal that the trial court erred in admitting her blood test results into evidence because she did not give her unconditional and unqualified consent to the drawing and subsequent testing of her blood.  The Court began its analysis under the premise that a driver may withdraw the statutory implied consent, and refuse testing.  582 S.W.3d 913,916 (Mo. Ct. App. W.D. 2019). From there, however, citing  Rothwell v. Dir. of Revenue, 419 S.W.3d 200, 206 (Mo. App. W.D. 2013), the Court declared that 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 driver’s license.” 582 S.W.3d 913,917 (Mo. Ct. App. W.D. 2019).  In the present case the COurt points out that despite her initial reluctance to give blood and urine samples,  Reeters ultimately agreed to provide samples. The arresting officer  testified that, once he clarified that Reeter would not be expected to pay for the testing when it occurred, “she decided to take it.” Reeter herself testified that she “originally agreed to let him draw the blood,” and only objected after her blood had been drawn when she learned that the arresting officer was going to take the samples with him. The above analysis lead the COA to declare that “Whatever her initial response, Reeter gave her unqualified consent to the blood draw before it was administered. 582 S.W.3d 913, at 917  (Mo. Ct.  App. W.D.  2019).  The Court citing   State v. Swartz, 517 S.W.3d 40, 49-50 (Mo. App. W.D. 2017) (search warrant which “authorized the search and seizure of [driver]’s body to obtain a blood sample to … locate ‘evidence of the crime of driving while intoxicated’ ” “was sufficient to authorize both the blood draw and the [laboratory] testing of the blood to secure evidence” of driving while intoxicated). went on to declare that “The Informed Consent form which the [arresting Officer] read to  Reeter  informed her that he was “requesting [that she] submit to a chemical test” of her blood “[t]o determine the alcohol or drug content of [her] blood.” See § 577.020.1. By agreeing to this request, Reeter necessarily agreed not only to have her blood drawn, but also to have it subjected to laboratory analysis to determine whether it contained drugs or alcohol.” 

Author’s Note : Caselaw addressing Fourth Amendment search-and-seizure issues generally holds that “the taking and later analysis of … [a] blood [sample] are ‘a single event for fourth amendment purposes,’ and that ‘a “search” is completed upon the drawing of the blood.’ ” Dodd v. Jones, 623 F.3d 563, 569 (8th Cir. 2010) (quoting United States v. Snyder, 852 F.2d 471, 474 (9th Cir. 1988); Johnson v. Quander, 440 F.3d 489, 500 (D.C. Cir. 2006)). Under this reasoning, “the testing of [a driver]’s blood require[s] no justification beyond that which [is] necessary to draw the blood” in the first place. Id. See alsoe.g.People v. Woodard, 321 Mich.App. 377, 909 N.W.2d 299, 305-10 (2017) (collecting cases).

An objection to foundation does not preserve an issue of unlawful search or seizure, except for plain error, which did not occur when driver consented to a blood draw. That consent included testing. Objections to where, by whom, and how the testing occurred did not constitute withdrawal of consent.

Ineffective assistance of counsel is not a claim for relief from a sentence that does not include incarceration and, if it were, trial counsel is not ineffective for choosing not to file a meritless motion to exclude evidence.

Offense Was Not Intoxication-Related:

State vRigsby589 S.W.3d 661 (MoCtAppW.D2019) (applying Illinois law)

In deciding that Rigsby’s prior Illinois convictions for for driving with marijuana in his breath, blood, or urine was not an “intoxication-related traffic offense,” for purposes of statute enhancing DWI conviction to felony based on being persistent offender and therefor Rigsby did not qualify as a “prior offender” the COA started its analysis with § 577.023.1(4) and Section 577.023.16 which provides that “[a] plea of guilty or a finding of guilt … in any intoxication-related traffic offense in a state, county or municipal court or any combination thereof shall be treated as a prior plea of guilty or finding of guilt for purposes of this section.” The COA then looked at Rigsby’s 2005 Illinois offense to see if it qualified as an intoxication-related traffic offense under the Missouri’s statute.  Rigsby’s Illinois conviction was for “[d]riving while under the influence of alcohol, other drug or drugs, intoxicating compound or compounds or any combination thereof” in violation of 625 Ill. Comp. Stat. Ann. § 5/11-501 (2005).  Author’s note: The Title of  § 5/11-501 is a bit misleading in that on the surface it may appear to qualify as an intoxication-related traffic offense however, the COA determined that it did not qualify as such.  625 Ill. Comp. Stat. Ann. § 5/11-501 (2005) states in relevant part as follows:

  1. A person shall not drive or be in actual physical control of any vehicle within this State while:

(6) there is any amount of a drug, substance, or compound in the persons breath, blood, or urine resulting from the unlawful use or consumption of cannabis listed in the Cannabis Control Act, a controlled substance listed in the Illinois Controlled Substances Act, or an intoxicating compound listed in the Use of Intoxicating Compounds Act.

 625 Ill. Comp. Stat. Ann. § 5/11-501(a)(6) (2005).

The COA reasoned in coming to its conclusion that Illinois statute provides for conviction without regard to physical impairment.” 589 S.W.3d 661, 666 (Mo.  Ct.  App. W.D. 2019), while Missouri requires  impairment of the defendants ability to properly operate an automobile. Id. The COA went on in its analysis to state that: “It is not appropriate to consider facts beyond those actually underlying a prior conviction, to determine if the prior offense constitutes an “intoxication-related traffic offense.”* * *  The focus is on the offense to which Rigsby pleaded guilty – not some other, hypothetical offense which the underlying facts might have supported.  Id. The Court therefor declared that “the test is whether the acts committed during the commission of the foreign crime would constitute the commission of one of the crimes mentioned in” a recidivism statute”.  Thus the critical question addresses the nature of the charges to which the defendant actually pleaded guilty; not whether the prosecution could have potentially proven the elements of different, additional, or more serious offenses. The “persistent offender” inquiry according to the COA is not “an opportunity for the State to retry the facts underlying a defendant’s prior convictions.” Id. In essence, this follows the Rule of Lenity which put simply declares that ambiguity in a criminal statute must be resolved against the government. United  Pharmacal  Co. of Mo.,  Inc.v. Mo. Bd.  of Pharmacy,  208 S.W.3d 907, 913 (Mo. banc 2006). 

Evidence Supports a Finding of DWI

State v. Ellis, 591 S.W.3d 516 (Mo. Ct. App.S.D. 2019) 

On appeal from a jury trial where the was convicted of DWI Ellis  argued on his sole point that  the trial court erred in not granting a judgment of acquittal because the State failed to prove he was intoxicated while driving.  In their opinion to the contrary the COA relying on  State v. Nelson, 465 S.W.3d 533, 540 (Mo.App. S.D. 2015) declared that a jury is free to believe some, part or all of any witness’s testimony. Therefore, there was sufficient evidence for the trier of fact to believe Ellis was DWI.

Reasonable Grounds Not Shown on Motion to Dismiss

State v. Christy, 594 S.W.3d 286 (Mo. Ct.App. W.D. 2020) 

On Appeal by the State on a Judgment of the Trial Court dismissing the criminal the charge of driving while intoxicated (DWI), pursuant to section 577.010, with prejudice the COA held that trial court did not clearly err in finding no substantial evidence of intoxication, supporting dismissal when defendant’s blood alcohol concentration was below .08% in its one one point of appeal the State argued that it presented substantial evidence of intoxication.  In coming to the determination that the TC’s dismissal with prejudice was not clearly erroneous the COA started with the plain language of section [577.037.2] which  calls for the court to weigh evidence and evaluate witness credibility in order to decide whether certain considerationsrender dismissal unwarranted.According to the COA the statute calls upon the trial court to “make a judgment” about the nature and quality of the evidence, because that evidence must “cause the court to findsomething.”  594 S.W.3d 286, 293, (Mo. Ct.App. W.D. 2020).  Further, while Dismissal is the default position, the clear implication is that the burden of persuasion is on the State to come forward with evidence to cause the court to find a dismissal unwarranted.”Id.

State v. Capozzoli, 2019WL 2504199 (Mo. Ct. App. W.D. 2019) 

On appeal from her conviction for DWI Capozzoli raised on an issue of first impression whether the officer’s testimony that Capazzoli was intoxicated was testimony regarding “mental condition” under the 2017 revision of section 490.065.2(3)(b)  which “prohibits an expert from offering an opinion ‘about whether the defendant did … have a mental state or condition that constitutes an element of the crime charged.” In affirming the COA declared  that intoxication is not a mental condition about which an expert may not testify in a DWI case. The Court further iterated that  “In fact, our courts have “characterized intoxication as a physical condition usually evidenced by unsteadiness on the feet, slurring of speech, lack of body coordination and an impairment of motor reflexes.” Citing State v. Ruark, 720 S.W.2d 453, 454 (Mo. App. S.D. 1986) (emphasis added) (citation omitted). Author’s note: The Court, however, did not address the issue of whether testimony of drug recognition examiners” regarding a defendant being under the influence of drugs is testimony on mental condition thus precluded by § 490.065.2(1).

No Hearing, No Execution of Sentence:

State ex rel. Young v. Elliott, 565 S.W.3d 711 (Mo. Ct. App. W.D. 2018)

  The Missouri Supreme Court in State ex rel. Mertens v. Brown, 198 S.W.3d 616 (Mo. 2006), declared that ““[o]nce judgment and sentencing occur in a criminal proceeding, the trial court has exhausted its jurisdiction. Itcan take no further action in that case except when otherwise expressly provided by statute or rule.””14 Under Mertens and the cases following it, a circuit court is required, before denying an offender release on probation, to hold a hearing if the Department of Corrections timely reports that the offender has successfully completed a 120-day program. In this case, because the court failed to hold a hearing before the 120th day, the time to order execution of the sentence expired and the court was required to release Young on probation.

Must Determine Whether Appellate Counsel’s Strategy Was Reasonable:

Hounihan v. State, 2018 WL 8807142 (Mo. Ct. App. S.D. 2018), reh’g and/or transfer denied, (Dec. 19, 2018)

  When requesting post-conviction relief based on claims of ineffective assistance of appellate counsel, a movant must satisfy the two-pronged Strickland standard. To meet this test, the movant must establish that appellate counsel’s performance was deficient such that it resulted in prejudice to his defense, which occurs when there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. In making this determination, the Court is to presume that appellate counsel’s conduct fell within the wide range of reasonable professional assistance, and a movant must overcome that presumption by showing that appellate counsel’s failure to raise an issue on appeal ““was not a reasonable legal strategy.”” Tate v. State, 461 S.W.3d 15, 22 (Mo. Ct. App. E.D. 2015).

  Here, the movant did not show any prejudice from trial counsel’s failure to call his physician because that physician’s testimony would not have negated the evidence that movant was intoxicated while driving. The motion court denied the movant’s claim by finding only that the enhancement issue was not obvious from the record. The Southern District declined to accept the motion court’s finding pointing out that a straightforward comparison of the movant’s driving record and the requirements of &s;§302.321.2 would have revealed a discrepancy. Further, the record showed that the movant was not subject to an enhanced sentence, and the fact that post-conviction counsel was the first to notice that did not negate appellate counsel’s duty to raise that issue.

One Wreck, Two Assaults, No Double Jeopardy:

State v. Edwards, 510 S.W.3d 374 (Mo. Ct. App. E.D. 2017)

  The defendant, Edwards, raised four points on appeal. First, that the trial court erred in finding him guilty of two counts of second-degree assault because the charges arose out of one act, and thus multiple charges violate double jeopardy. Second, the trial court erred because the evidence at trial did not support the charging document’s language. Third, and fourth, Edwards argues that because there was not sufficient evidence to convict him of each of the assaults there was also insufficient evidence to convict him of the armed criminal actions.

  The Court in its analysis started with the premise that ““the Double Jeopardy Clause does nothing more than prevent the sentencing court from prescribing greater punishment than the legislature intended,”” and therefore, while Edwards only committed one act, it resulted in harm to two different persons, thus his convictions for second-degree assault for each separate victim do not offend the double jeopardy clause. In addressing Edwards’ second point, the Court first notes that his argument of insufficient evidence to convict him of the crime as charged in the indictment is not the same as arguing there was insufficient evidence at trial that he committed the crime. The Court concludes that his point is essentially a claim of variance between the evidence at trial and the charging document that he failed to raise at trial or in his motion for new trial. The Court, in finding no error, plain or otherwise, in the trial court’s judgment despite the variance, here reiterated its holding in State v. Nelson, 334 S.W.3d 189, 197 (Mo. Ct. App. W.D. 2011). In Nelson, the Court of Appeals surmised that the essential purpose of an indictment is to enable the accused to make his defense and assert double jeopardy in bar of a further prosecution. As long as the indictment does this, any description that does appear in the indictment is, as the court stated, surplusage and cannot affect the outcome of the trial. Therefore, the Court denied Edwards point, holding that the State need not prove any surplusage. In denying Edwards’ third and fourth points, the court’s function is not to re-weigh the evidence, but rather to determine if there was sufficient evidence from which the trier of fact reasonably could have found the defendant guilty. Here, the Court determined there was sufficient evidence from which the trier of fact could have found the element of causation beyond a reasonable doubt.

Blood Draw and 2x Warrant not required:

State v. Swartz, 517 S.W.3d 40 (Mo. Ct. App. W.D. 2017), transfer denied, (Mar. 28, 2017) and transfer denied, (May 30, 2017)

  The Fourth Amendment to the United States Constitution and Article I, section 15 of the Missouri Constitution do not state that search warrants are required prior to searches, but the general requirement that police get judicial authorization in advance of their intended searches has been established beyond doubt through countless opinions. See, e.g., Missouri v. McNeely, 569 U.S. 141, 133 S. Ct. 1552, 1569, 185 L. Ed. 2d 696 (2013) (reiterating the Court’s prior explanation ““that the importance of requiring authorization by a ‘‘neutral and detached magistrate’’ before allowing a law enforcement officer to ‘‘invade another’s body in search of evidence of guilt is indisputable and great’’””) (quoting Schmerber v. California, 384 U.S. 757, 770, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966) and Johnson v. U.S., 333 U.S. 10, 13–-14, 68 S. Ct. 367, 92 L. Ed. 436 (1948)). Schmerber made it clear in particular that absent an exception to the warrant requirement a search warrant must be obtained from a judge prior to the seizure of a DWI suspect’s blood. On appeal Swartz argues that the trial court erred in denying his motion to suppress the blood test results because the testing of the samples ““constituted an unlawful search pursuant to the Fourth Amendment of the United States Constitution in that the search warrant only authorized the seizure of the blood samples and not the actual testing of the samples.””16 In essence, Swartz does not challenge the legality of the search warrant a obtained by the officer. Rather, he argues that the testing of the blood constituted a second search necessitating a second warrant. Swartz argues the first search warrant for the blood draw was deficient because it was silent as to the issue of the testing.

  In making this argument, Swartz, in addition to Missouri v. McNeely, relies on two other cases: Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 109 S. Ct. 1402, 103 L. Ed. 2d 639, 4 I.E.R. Cas. (BNA) 224, 130 L.R.R.M. (BNA) 2857, 13 O.S.H. Cas. (BNA) 2065, 49 Empl. Prac. Dec. (CCH) P 38791, 111 Lab. Cas. (CCH) P 11001, 1989 O.S.H. Dec. (CCH) P 28476 (1989), which considered the ““special needs”” exception to the search warrant requirement for obtaining blood samples, and State v. Martines, 182 Wash. App. 519, 331 P.3d 105 (Div. 1 2014), rev’d, 184 Wash. 2d 83, 355 P.3d 1111 (2015). Martines which was subsequently overturned, declared that the drawing of blood and the testing of blood constitute two separate searches, each of which require particular authorization. A search warrant which only authorized the blood draw and did not also specifically authorize the testing of the blood sample constituted a Fourth Amendment violation.

  In addressing Swartz’s argument, the Court of Appeals reasoned that while the Skinner opinion focused on the fact that the first intrusion in a blood test is the actual physical penetration of the body to obtain the sample, and the second invasion is that of the of the individual’s privacy interest based upon the analyzing of the sample, the actual crux of the case pertained to an exception to the warrant requirement. The Skinner opinion rested on the ““special needs”” exception to the search warrant requirement and, as such, Skinner‘s holding has no direct bearing on Swartz’s argument which was whether the search warrant here was sufficient to authorize both the draw and subsequent analysis of his blood. In addressing State v. Martines, the Court of Appeals first notes that the Martines case was subsequently overturned by the Washington Supreme Court.17 The Washington Supreme Court’s rationale was that:

[t]he purpose of the warrant was to draw a sample of blood from Martines to obtain evidence of DUI. It is not sensible to read the warrant in a way that stops short of obtaining that evidence. A warrant authorizing a blood draw necessarily authorizes blood testing, consistent with and confined to the finding of probable cause. The only way for the State to obtain evidence of DUI from a blood sample is to test the blood sample for intoxicants.18

  In Swartz, the Court of Appeals declared that the search warrant at issue authorized both the search and seizure of his body and blood sample to provide evidence of his driving while intoxicated. According to the Court of Appeals, Swartz did not provide any support for his argument that the search warrant was insufficient to authorize both the draw of his blood and the subsequent testing of that blood for its blood alcohol content. Further, Swartz’s argument that because the search warrant did not specifically detail for what purposes the blood draw could be used, it allows for ““rummaging”” and ““wide-ranging searches”” forbidden by the Missouri and United States Constitutions, is unfounded because while the search warrant does not specify the exact testing mechanisms to be used to secure the evidence sought by the State, it does specify the crime for which the evidence is being seized and, as such, the testing was confined to locating evidence consistent with that finding of probable cause.

Records Must Have Foundation:

State v. Pylypczuk, 527 S.W.3d 96 (Mo. Ct. App. W.D. 2017)

  The defendant, Pylypczuk, argued on appeal that the trial court erred in admitting into evidence an exhibit which purported to show his prior conviction of an intoxication-related offense and, as such, improperly relied on that exhibit to enhance his offender status because said exhibit lacked proper authentication.

  The State’s response was that V.A.M.S. &s;§577.023.16 eliminated the need for the State to authenticate the document prior to admission because the statute expressly mandates that DOR records be certified yet contains no such requirement for Highway Patrol Driving While Intoxicated Tracking System (DWITS) records.

  In finding for Pylypczuk, the Court declared that, contrary to the State’s claim, the inclusion of DOR records in V.A.M.S. &s;§577.023.16 undercuts the State’s argument and the mere existence of V.A.M.S. &s;§302.312 suggests that V.A.M.S. &s;§577.023.16 was not intended to address the admission of DOR and DWITS records. To interpret the legislature’s intent in the manner indicated by the State would make V.A.M.S. &s;§302.312.2 superfluous. The Court went on to declare that while the statute allows the State to prove persistent offender status by specified reports, the only self-authenticating documents are those designated by the General Assembly. Therefore, V.A.M.S. &s;§577.023.16 does not eliminate the general foundational requirements which the State must lay for admission of DWITS records.

Portable Test Result Admissible:

State v. Roux, 554 S.W.3d 416 (Mo. Ct. App. S.D. 2017), reh’g and/or transfer denied, (Oct. 5, 2017) and transfer denied, (Nov. 21, 2017)

  In reaching its decision to allow the numerical result of a PBT despite the unreliability of such a device, the Court first declared that V.A.M.S. &s;§577.021 permits specified law enforcement officers to administer pre-arrest chemical tests. Those tests are admissible as evidence of probable cause to arrest and as exculpatory evidence. However, despite recognizing that the ““test’s results shall not be admissible as evidence of blood alcohol content,”” the Court still chose to allow the admission of said result under the guise of showing that the arresting officer had probable cause. The Court reasoned that the evidence of a ““positive”” [or negative] result is ambiguous and ““the actual numerical value of the test is what makes the result of the portable breath test relevant to the issue of probable cause”” and ““a reasonable officer, when faced with a portable breath test result of .08 percent or more would be justified in believing the driver was impaired so as to support a finding of probable cause.””19 This author’s question is what numerical number exactly is relevant. The only bright side to this conclusion is that the State must still lay the proper foundation before this ““evidence”” is admissible.

Thirty Minute Delay No Bar to Conviction:

State v. Lopez, 539 S.W.3d 74 (Mo. Ct. App. E.D. 2017), reh’g and/or transfer denied, (Dec. 19, 2017) and transfer denied, (Mar. 6, 2018)

  Denying Lopez’s first point that due to a 30 minute lapse there was not a temporal connection between his admitted drinking and the Officer’s observation of signs of intoxication, the Court relied on State v. Davis, 226 S.W.3d 927, 929 (Mo. Ct. App. W.D. 2007). In Davis, the Court declared that an interval of less than thirty minutes between driving and observations of intoxication is close enough in time frame to support a conviction for driving while intoxicated. Denying Lopez’s argument that the arresting officer improperly conducted the test or was not qualified to perform the test, the Court, relying on State v. Evans, 517 S.W.3d 528, 540 (Mo. Ct. App. S.D. 2015), reh’g and/or transfer denied and transfer denied, declared that such evidence goes to the weight of the evidence, which is for the finder of fact to determine. Further, this issue was waived since it was raised for the first time on appeal.

  In denying Lopez’s second point that the trial court plainly erred in submitting an instruction to the jury because it vaguely defined Defendant’s conduct rather than issuing a concise statement, thus impermissibly placing the burden on the jury to determine the meaning of ““recklessly”” and ““caused,”” the Court declared that MAI-CR 3d. 322.11 does not require definitions for the terms ““recklessly”” or ““caused,”” and the challenged instruction shows that it used ““recklessly”” and ““caused”” in their ordinary, common-sense meaning, which would not have misdirected or misled the jury.20 The terms ““recklessly”” and ““caused”” are commonly understood so an approved instruction using those terms without defining them did not mislead the jury. Evidence showing that the appellant drove while intoxicated with his five-year-old child in the car included appellant’s admissions and physical signs of intoxication. The Court of Appeals concluded that it would decline plain error review on the basis of an insufficient record.

Shoulder Is Not Road:

State v. Atkinson, 543 S.W.3d 656 (Mo. Ct. App. S.D. 2018), reh’g and/or transfer denied, (May 1, 2018) and transfer denied, (May 1, 2018)

  Reasonable suspicion, which has been found to be synonymous with probable cause, is found to exist when an officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot. State v. Smith, 448 S.W.3d 835, 839–-40 (Mo. Ct. App. S.D. 2014). To find probable cause, a court must examine the totality of the circumstances in order to evaluate whether the standard for reasonable suspicion has been met. Evaluation of relevant factors in isolation from each other does not take into account the totality of the circumstances.

  The Court declared that the defendant’s ““divide and conquer”” strategy had been rejected in the past as it ““does not take into account the totality of the circumstances”” by which reasonable suspicion is evaluated.””21

Horizontal Gaze Nystagmus Test Discussed:

State v. Deweese, 540 S.W.3d 490 (Mo. Ct. App. W.D. 2018)

  The defendant/appellant’s sole point on appeal alleges error in admitting the results of the HGN test.

  In affirming the jury’s finding that the defendant was guilty of DWI, the Court of Appeals first relied on State v. Burks, 373 S.W.3d 1 (Mo. Ct. App. S.D. 2012), wherein it was determined that before the HGN can be admitted into evidence the State must show that ““(1) the officer was adequately trained to administer the test and render an opinion; and (2) the test was properly administered.”” According to Burks, ““[e]ight hours of instruction on how to administer and interpret the HGN test has been recognized as adequate training.22”” Once it was determined that the State had satisfied this initial threshold, the Court of Appeals went on to state that the additional evidence of the defendant’s intoxication, which was admitted without objection, including his erratic driving, admission of consumption of intoxicants, odor of intoxicants, confused speech, inability to remember where he had been or where he was going, combined with a breath test result showing his blood alcohol content to be at .274%%, all establishes that even if it had been error to admit the testimony regarding the HGN test result, it was harmless error.

Reasonable Suspicion Found Without Traffic Violation:

State v. Barlow, 543 S.W.3d 102 (Mo. Ct. App. W.D. 2018)

  The defendant’s sole point on appeal was that the trial court plainly erred in overruling his motion to suppress and in admitting all of the evidence found as a result of his traffic stop because, under the totality of the circumstances, the arresting officer did not have reasonable suspicion to stop his vehicle. The defendant argued that all the officer’s alleged observations were not enough to justify the traffic stop because the officer did not observe any traffic violations before stopping him. The Court of Appeals, in referencing V.A.M.S. &s;§577.010.1, declared that ““the crime of driving while intoxicated does not require as an element of the offense the commission of a traffic violation. The offense is committed by the act of driving while in an intoxicated condition.””23 When the arresting officer personally observed that the defendant had bloodshot and glassy eyes, slurred speech, and smelled of intoxicants, and his observations were made five or ten minutes before the traffic stop, said observations provided reasonable suspicion to justify the stop of his vehicle.

HGN Field Sobriety Test Admissible:

State v. Tice, 550 S.W.3d 558 (Mo. Ct. App. S.D. 2018)

  The Court of Appeals addressed only one of the defendant’s two issues on appeal because while he challenged the admissibility of the HGN test results, he did not challenge the sufficiency of the evidence to support his conviction.

  The defendant argued that the trial court abused its discretion in admitting the arresting officer’s testimony about the results of an ““improperly administered HGN test”” because ““an adequate foundation was not established.”” The defendant based his challenge, in his motion to suppress, on State v. Browning, 458 S.W.3d 418, 424–-30 (Mo. Ct. App. W.D. 2015), arguing that the results of the HGN test were inadmissible because the officer failed to follow the National Highway Traffic Safety Administration (NHTSA) manual while administering the HGN test. The Court of Appeals couldfind ““no merit”” to this argument.

  One of the main take-aways from this case that the Court goes to great length to mention is that ““because the NHTSA guidelines were not admitted in evidence, there is no evidentiary basis for defendant’s argument.””24 Therefore, regardless of whether the argument might have had merit, it was never considered because the defense counsel did not admit the manual. The prudent DWI attorney is ALWAYS preserving their appeal by making sure all relevant information is admitted into evidence because, if it’s not part of the record, it simply DOES NOT exist.

Traffic Stop Okay:

State v. Galen, 554 S.W.3d 550 (Mo. Ct. App. E.D. 2018)

  In finding that under the totality of circumstances the arresting officer had reasonable suspicion justifying an investigatory stop, the Court of Appeals declared that the ““community caretaking function may require an investigation that could meet the threshold in Terry when reasonably carried out.””25 Under State v. Schroder, a law enforcement officer may approach a vehicle for safety reasons, or if a motorist needs assistance, so long as the officer can point to reasonable, articulable facts upon which to base his actions.””26

  In this case, despite the defendant’s dispute over the propriety of his lane change just prior to the stop, based on the totality of the other circumstances including his vomiting, striking a curb, and attempting to evade the officer, the officer had reasonable suspicion which justified his initial stop.

Reasonable Cause Supported Stop:

State v. Byers, 551 S.W.3d 661 (Mo. Ct. App. E.D. 2018)

  The defendant did not challenge the sufficiency of the evidence to support the judgment rather, he argued: (1) the trial court abused its discretion in denying his motion for a mistrial; (2) the trial court erred or abused its discretion in denying his request to instruct the jury to disregard the State’s reference to his prior criminal case; and (3) the trial court erred in admitting evidence obtained in violation of his constitutional right to be free from unreasonable searches and seizures. In affirming the trial court’s decision, the Court of Appeals found that, based on the totality of the circumstances, the circuit court’s denial of a curative instruction and denial of a mistrial were proper. Regarding the defendant’s request for a mistrial and a curative instruction, because the issue in question was isolated, indefinite, and was not decisive in the outcome, the Court of Appeals found it was within the trial court’s discretion and did not result in prejudice sufficient to warrant a mistrial. Where, as here, the officer observes a vehicle touch the fog line and also observes other factors indicating the driver may be intoxicated, the totality of the circumstances may constitute a reasonable suspicion sufficient to justify the traffic stop.27

Previous Intoxication-Related Traffic Offenses Shown:

State v. Sallee, 554 S.W.3d 892 (Mo. Ct. App. S.D. 2018), reh’g and/or transfer denied, (July 5, 2018) and transfer denied, (Sept. 25, 2018)

  The defendant asserts five points on appeal. The first four points challenge the sufficiency of the evidence supporting the finding that he was a chronic offender. The fifth point alleges that the trial court abused its discretion in admitting the alleged hearsay testimony. In affirming his conviction, the Court of Appeals found no merit in points 1, 4, and 5, which were dispositive of the appeal. At trial, over the defendant’s objection, the trial court admitted evidence that a restaurant employee had reported that an intoxicated man had left the restaurant, got into a vehicle, and then drove behind a store. While the evidence was purported to be admitted merely to show the subsequent conduct of the officer, it went far beyond what was necessary and the State used the hearsay for the truth of the matter asserted during its closing argument. The Court of Appeals determined that the trial court ‘s admission of the content of the check-vehicle call over the defendant’s hearsay objection was not error because, at best, it should be received, subject to limiting instruction. And this is true only where the defendant requests such an instruction which, here, the defendant did not. Regarding the defendant’s first four points, the Court of Appeals determined that the evidence of convictions under Arkansas municipal ordinances was sufficient to satisfy the test of whether the acts committed during the commission of the foreign crime would qualify as an intoxication-related traffic offense (IRTO) under section 577.023. Accordingly, because they described the offenses as ““Driving While Intoxicated,”” they suffice.

Temporal Connection Missing:

State v. Wilhite, 550 S.W.3d 141 (Mo. Ct. App. W.D. 2018)

  In reversing the trial court’s conviction of the defendant for DWI, the Court of Appeals found that there was insufficient evidence to establish a temporal connection between him operating the vehicle and his being intoxicated. The defendant argued that, while he was the only one at the accident scene on the side of a rural roadway, and while he told a witness that he was the only one in the vehicle, the fact that no one witnessed him actually driving is dispositive because that is an essential element of the charge. The Court of Appeals reasoned that because no one actually observed him exiting the vehicle in an intoxicated state, and because of his lack of access to alcohol between the operation of the vehicle and the time the witnesses observed his intoxication, the State failed to prove beyond a reasonable doubt that he operated a vehicle while intoxicated. In essence, as the court pointed out, ““There is no way to know if this alcohol was consumed before or after the accident.””28

Self-Incriminating Statements Admissible:

State v. Mack, 560 S.W.3d 29 (Mo. Ct. App. W.D. 2018), reh’g and/or transfer denied, (Sept. 25, 2018) and transfer denied, (Dec. 4, 2018)

  In affirming the trial court’s determination that the admission into evidence of statements by the defendant to the police that he had been drinking and there was a beer can in his car were harmless error and not violative of his privilege against self-incrimination, the Court of Appeals pointed out that there may be some constitutional errors which in the setting of a particular case are so unimportant and insignificant that they may, consistent with the Federal Constitution, be deemed harmless. Such errors do not require the automatic reversal of the conviction if the ““beneficiary of a constitutional error,”” the State, can establish beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. Here, the State made that showing which included loss of balance, slurred speech, lack of body coordination, and impairment of motor reflexes as well as the smell of alcohol, giving a false name, and refusal of a breath test. Therefore, given the totality of the circumstances, the record demonstrates beyond a reasonable doubt that the error complained of did not contribute to the defendant’s conviction of DWI and any error in admitting the challenged statements into evidence was harmless.

No Expungement Pursuant to Section 577.054 Where Original DWI Charge was Amended to Careless and Imprudent Driving:

Bright v. Ray, 520 S.W.3d 482 (Mo. Ct. App. E.D. 2017)

  V.A.M.S. &s;§577.054 allows a petitioner to move for expungement when: (1) he has pleaded guilty to or been convicted of an alcohol-related driving offense; (2) the offense is the petitioner’s only alcohol-related driving offense; (3) the offense is a misdemeanor or a county or city ordinance violation; and (4) the offense is not a conviction for driving a commercial motor vehicle while under the influence of alcohol.

  The petitioner was arrested and charged initially with DWI. He subsequently pleaded guilty to Careless and Imprudent driving, a municipal offense. The petitioner argues one point on appeal: that the trial court erred in granting the Director’s motion to dismiss which prevented his getting an expungement pursuant to V.A.M.S. &s;§577.054. The rational basis for granting relief of expungement or denying it from those who do not suffer the consequences is related to the state’s legitimate interest in punishing and deterring drunk driving, and in providing relief to those who have suffered consequences of a guilty plea to driving while intoxicated. In the present case, the Court of Appeals rationalized that because the petitioner entered into a plea agreement whereby his DWI was amended to Careless and Imprudent Driving, he avoided the consequences of a conviction for an alcohol-related driving conviction. As such, he received the benefit of his bargain. ““He cannot now return to receive more benefits reserved for those who suffered the consequences of a guilty plea to driving while intoxicated, which [he] avoided.””29

  In essence, to receive the benefit of V.A.M.S. &s;§577.054, a person must actually plead guilty to or have been convicted of alcohol-related driving offense. Simply being arrested for such a charge is not sufficient.

Persistent Offender under V.A.M.S. &s;§577.023:

State v. Thomas, 562 S.W.3d 359 (Mo. Ct. App. S.D. 2018)

  The defendant appealed her DWI conviction, challenging the court’s determination that she was a persistent offender under V.A.M.S. &s;§577.023. She also made a sufficiency of evidence argument in the trial court’s determination of a proscribed substance in her body, and lastly alleged a violation of her right to a speedy trial. In denying Thomas relief under her first two points, the Court of Appeals pointed out that ““[l]egislative history eviscerates this argument.””30 The Court noted that in 2005, the legislature removed any V.A.M.S. &s;§577.023 time limitation for persistent offender-qualifying intoxication-related traffic offenses (IRTOs), while keeping a five-year IRTO window for prior offenders. The defendant’s speedy trial argument also failed. First, because she did not preserve it for appeal and, second, because she failed to establish substantial grounds for believing that manifest injustice or a miscarriage of justice has resulted. See State v. Bartlik, 363 S.W.3d 388, 391 (Mo. Ct. App. E.D. 2012)). Here, the defendant has not demonstrated that she was prejudiced, let alone to the level that rises to manifest injustice.

Taillights Discussed:

State v. Champagne, 561 S.W.3d 869 (Mo. Ct. App. S.D. 2018)

  V.A.M.S. &s;§304.019.1(4) requires a driver stopping or slowing down to signal by hand, light, or device, and requires the light or device to be in good working order ““approved by the state highway patrol[.]”” A regulation provides that lights approved by the director are those installed by the manufacturer. The defendant filed a motion to suppress the stop because there was no legal basis for the stop, thus it was an unlawful seizure. The State appealed the trial court’s suppression of the stop. In reversing the trial court’s decision, the Court of Appeals agreed with the State that the traffic stop was lawful under V.A.M.S. &s;§304.019.1(4) because, under the statute, a driver is required to have all stoplights that were installed by the manufacturer in operating condition when decreasing the speed of a motor vehicle and since she did not, the stop was lawful. The defendant used only installed brake lights, of which just one in three worked, which did not constitute good mechanical condition. Therefore, her braking displayed a violation of statute, which authorized a stop, which defeated a motion to suppress.

Evidence Sufficient to Show Temporal Connection Between Intoxication and Driving:

State v. Barac, 558 S.W.3d 126 (Mo. Ct. App. W.D. 2018), as modified, (Oct. 23, 2018)

  The defendant argues that there was insufficient evidence to establish the offense’s temporal requirement–that he had operated the vehicle while intoxicated. In affirming the trial court’s conviction for DWI, the Court of Appeals assessed the sufficiency of the evidence. The defendant did not deny that he was intoxicated when the officer arrived on the scene nor did he dispute that his prior convictions render him an aggravated offender. Rather, he argued that the State failed to present sufficient evidence from which a reasonable factfinder could have found beyond a reasonable doubt that he operated his vehicle while intoxicated. Relying on State v. Chambers, 207 S.W.3d 194, 197 (Mo. Ct. App. S.D. 2006), the Court of Appeals correctly identified that ““[I]n those cases in which the accused engine was not running at the time in question, the State must present ‘‘significant additional evidence of driving [or operating] and the connection of driving [or operating] in an intoxicated state … to sustain a criminal conviction.’’  ””31 In essence, the State must establish the temporal connection between the defendant’s last operation of a motor vehicle and his observed intoxication. In the present case, that temporal connection consisted of the motor vehicle’s location on the shoulder of a highway, physical signs of intoxication and a blood alcohol level over four times the limit with no source of alcohol in the motor vehicle, and refusal of a breath test. According to the Court of Appeals, this established ““sufficient and significant circumstantial evidence for a reasonable trier of fact to find beyond a reasonable doubt that [appellant] drove or operated his vehicle in temporal connection to his severe intoxication.””32

No Seizure Occurred when Officer Approached an Already Stopped Vehicle Pursuant to a Stranded Vehicle Dispatch:

State v. Marr, 499 S.W.3d 367 (Mo. Ct. App. W.D. 2016)

  The defendant argues that the trial court erred in overruling her motion to suppress because the investigating officer violated the Fourth Amendment by impermissibly extending the scope of his initial investigation. In affirming the trial court’s finding that the officer’s actions were permissible under the Fourth Amendment, the Court of Appeals, relying on State v. Lammers, 479 S.W.3d 624, 631 (Mo. 2016), declared that no seizure occurred because ““[f]or purposes of the Fourth Amendment, a seizure does not occur simply because a police officer approaches an individual and asks a few questions.””33 The Court of Appeals reasoned that the defendant’s initial encounter with the officer was consensual and she failed to identify when the encounter became a detention. Regardless, however, shortly after the encounter occurred, the Officer developed reasonable suspicion of a crime occurring.

Traffic Stop Requires More than a Hunch:

State v. McCarty, 500 S.W.3d 876 (Mo. Ct. App. W.D. 2016)

  In reversing the trial court’s conviction of the defendant, the Court of Appeals held that an officer’s hunch that the defendant might have been the man mentioned in an anonymous tip to police concerning a dispute did not constitute reasonable suspicion justifying a Terry stop of the defendant’s vehicle. The officer’s hunch was not supported by specific and articulable facts. Though the anonymous caller reported that a male and female had been verbally arguing, the Fourth Amendment requires that a traffic stop is lawful only if it has support in reasonable suspicion of criminal activity, meaning ““some minimal level of objective justification”” of criminal activity based on specific and articulable facts, that illegal activity has occurred or is occurring. That degree of reasonable suspicion was not present in this particular case.

State Must Show Articulable Facts for Stop:

State v. Perry, 548 S.W.3d 292 (Mo. 2018)

  The Missouri Supreme Court affirmed the trial court’s finding that reasonable suspicion of criminal activity supports stopping a person to determine whether criminal activity is in fact occurring. This case raises the issue of whether, when a person complies with an officer’s request to produce a driver’s license to verify whether he is driving on a suspended license, he or she has been ““seized”” pursuant to the Fourth Amendment to the United States Constitution. To be reasonable, suspicion must stand on articulable facts. One officer may base reasonable suspicion on information from another officer, but only if that other officer’s suspicion stood on articulable facts is a stop permissible. Here, the officer stopped the defendant on suspicion of driving on a suspended license, which she heard from another officer, but the State did not show the articulable facts on which the other officer relied. First, the Supreme Court addressed what exactly constitutes a seizure and determined that a seizure occurs when a reasonable person believes that they are not free to leave. In the present case, the officer’s pursuit, blocking egress, announcement that she suspected defendant of driving while suspended, and running a record check on his driver’s license supported such a belief. Deferring to the U.S. Supreme Court’s decision in Terry v. Ohio, the Missouri Supreme Court declared:

A ““seizure”” occurs ““[o]nly when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.””… [A] person has been ‘‘seized’’ within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.””34

  Going even further, pursuant to State v. Lammers, the Court declared that ““[F]or purposes of the Fourth Amendment, a seizure does not occur simply because a police officer approaches an individual and asks a few questions.””35 Tying everything together, the Court ruled that while the Fourth Amendment proscribes unreasonable searches and seizures, it does not proscribe voluntary cooperation with police, and while most people will cooperate with a police officer’s request, this does not eliminate the consensual nature of the response. Therefore, the defendant’s voluntary cooperation with the officer’s request did not terminate the consensual nature of their encounter.

Double Jeopardy Bars Criminal Charge After Municipal Charge:

State v. Larsen, 495 S.W.3d 836 (Mo. Ct. App. W.D. 2016)

  The Court of Appeals affirmed the trial court’s dismissal of Larson’s felony DWI on double jeopardy grounds because Larson had previously pled guilty to municipal DWI arising from the same set of operative facts. The Court of Appeals relied on J.C.W. ex rel. Webb v. Wyciskalla, 275 S.W.3d 249, 254 (Mo. 2009). In Wyciskalla, the Missouri Supreme Court explained that the subject matter jurisdiction of Missouri’s courts is dictated by article V of the Missouri Constitution. Here, the question presented to the Court of Appeals was: What subject matter jurisdiction does a judge have in the municipal division of the circuit court? The answer is found in article V, section 23: ““A municipal judge shall hear and determine violations of municipal ordinances in one or more municipalities.”” Therefore, the issue was, did the judge who was presiding in the Greenwood municipal division hearing and determining a violation of a municipal ordinance have subject matter jurisdiction to enter judgment against Larsen on the DWI charge? The Court of Appeals concluded that the municipal division of the circuit court in this case possessed both personal and subject matter jurisdiction to hear and determine the municipal DWI ordinance violation. The Court stated:

Its judgment is not a nullity. Because a defendant cannot be prosecuted for an offense that includes within the new charge all of the same elements of a previous offense to which the defendant pled guilty (which the State concedes in the present case), or of which he was previously convicted in a municipal division of the circuit court, the State is prohibited from charging Larsen with the class D felony of driving while intoxicated as a persistent offender and the circuit court did not err in dismissing the State’s case on double jeopardy grounds.37