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

Civil Case Updates 2016- Present

Civil Cases (Director of Revenue):

Arresting Officer Not Needed

Ridgway v. Dir. of Revenue, 573 S.W.3d 129 (Mo. App. E.D. 2019)

After numerous attempts by both the Director and Petitioner in a Trial de’Novo neither side was able to serve a subpoena on the arresting officer who did not appear.   The Court of appeals declared that the Failure of the arresting officer to appear is not grounds to exclude Department of Revenue records, because the statutes provide those records are admissible if certified, and without further foundation because the evidence when presented on the record is uncontested, therefore, there is no credibility determination to receive deference.   The COA declared that the absence of a peace officer’s testimony is not reason to exclude from evidence contents of records admitted under Section 302.312.1 RSMo, is a misapplication of the law.  In making this determination, the court, relied on Thebeau v. Dir. of Revenue, State of Mo., 945 S.W.2d 674, 675–76 (Mo. App. E.D. 1997) which held that the Director’s exhibit “A” was admissible under statutory exceptions to hearsay and further that it was not objectionable based on on lack of an opportunity to confront or cross-examine. The problem with this holding is it fails to take into consideration the following from Melendez-Diaz

“Respondent asserts that we should find no Confrontation Clause violation in this case because petitioner had the ability to subpoena the analysts. But that power-whether pursuant to state law or the Compulsory Process Clause-is no substitute for the right of confrontation. Unlike the Confrontation Clause, those provisions are of no use to the defendant when the witness is unavailable or simply refuses to appear. See, e.g., Davis, 547 U.S., at 820, 126 S.Ct. 2266 (“[The witness] was subpoenaed, but she did not appear at … trial”). Converting the prosecution’s duty under the Confrontation Clause into the defendant’s privilege under state law or the Compulsory Process Clause shifts the consequences of adverse-witness no-shows from the State to the accused. More fundamentally, the Confrontation Clause imposes a burden on the prosecution to present its witnesses, not on the defendant to bring those adverse witnesses into court. Its value to the defendant is not replaced by a system in which the prosecution presents its evidence via ex parte’ affidavits and waits for the defendant to subpoena the affiants if he chooses.” I believe this argument would also hold in the civil context since such testimony may be used in criminal case

Contact with Attorney Must be Confidential

 Roesing v. Dir. of Revenue, 573 S.W.3d 634 (Mo. banc. 2019)

After being arrested for DWI and refusing to submit to breath test, the   DOR revoked his driving privileges for one year pursuant to 577.041.1. Rosing filed a PFR who sustained the revocation.  Roesing appealed based on the argument that his refusal was not voluntary and unequivocal under because law enforcement deprived him of his statutory right to counsel by both listening to and recording of his end of the conversation with his attorney.   The MO Supreme Court, in an issue of first impression, determined 577.041.1’s right “to attempt to contact an attorney” is violated when the driver successfully contacts an attorney, but is then denied the right to speak with the attorney privately.

The Court reasoned that Section 577.041.1’s purpose was “to provide the driver with a reasonable opportunity to contact an attorney to make an informed decision as to whether to submit to a chemical test.”(at 637 author’s emphasis added).”  The  Court further iterated that “Any refusal to take the test must be “voluntary and unequivocal.”  (Id. at 677Citing White v. Dir. of Revenue, 255 S.W.3d 571, 580 (Mo. App. 2008). Further, to truly to make an informed decision and a subsequent refusal to be to be “voluntary and unequivocal” the driver MUST be able to candidly disclose all necessary information to receive appropriate advice from the attorney and when he is not able to do so without the possibility that anything said  can be subsequently used by the prosecuting attorney any decision is and cannot be  “voluntary and unequivocal”  and is further not what the legislature intended.

Blood Alcohol Test Report Admissible Without Certification

Nix v. Dir. of Revenue, 573 S.W.3d 156 (Mo. App. W.D. 2019)

At a subsequent trial de novo pursuant to section 302.535, RSMo. Nix’s DL based upon his having a BAC of 0.200%. Nix objected to the admission of the breath test results on foundational grounds based on the Officer’s admitted failure to sign the certification on the Blood Alcohol Test Report form.  The trial court sustained the objection and excluded the breath test report and any testimony concerning the breath test results.  The Director appealed arguing a sole point that the officer’s signature on the Blood Alcohol Test Report form is not a foundational requirement to the admission of the blood alcohol test results because it is collateral to the proper administration of the test. In reaching its decision the COurt goes through the analysis that “To establish a foundation for admitting blood alcohol test results, the DOR must establish that the test was performed: (1) following approved techniques and methods of the division of health, (2) by an operator holding a valid permit, (3) on equipment and devices approved by the division.” (573 S.W.3d 156, 159). The Court further points out that Nix never alleged that the Officer administered the  breath test in a manner inconsistent with statutory or DHSS regulatory requirements, and Nix did not argue that the Officer’s failure to sign the certification contained on the Blood Alcohol Test Report affected the accuracy of the results. Based upon this analysis, the Court determined that the Officer’s failure to sign the certification on the Blood Alcohol Report was collateral to the performance of the breath test, did not impact the accuracy of the test results, and did not require the exclusion of the blood alcohol test results and as such, the trial court’s ruling was erroneous.

Director need not call the arresting officer as a witness to Show Refusal.

Collier v. Director of Revenue, 2020 WL 3421674, Mo. Ct. App. W.D. 2020)

Section 577.041, RSMo. Provides that if  a person under arrest refuses to submit to an officer’s request for a chemical test, for the Court to uphold the revocation the Director must show (1) the person was arrested or stopped, (2) the officer had reasonable grounds to believe that the person was driving a motor vehicle while in an intoxicated condition, and (3) the person refused to submit to a chemical test. Section 577.041. At issue is the Petitioner’s right to cross-examine a witness versus the State’s obligation pursuant to White v. Dir. of Revenue, 255 S.W.3d 571, 580 (Mo. App. 2008).  Collier argued that despite his failure to subpoena the arresting officer, the Director did not meet its burden of proving that Collier refused the test because he was not permitted to cross-examine the officer.   The COA in reaching its decision that section 302.312 allows the Director to submit its case on the record without any testimony of foundation relied on Doughty v. Dir. of Revenue, 387 S.W.3d 383 (Mo. banc 2013). In Doughtry the Missouri Supreme Court upheld the suspensions of both a father and son despite the Director’s failure to present the Officer for cross examination. In doing so both in the present case as well as in Doughtry, it appears that the Court ignores the dictate of  Melendez –Diaz v. Massachusetts,  557 U.S. 305, 324 (2009) When the burden is on the state/director to present its witnesses shifting the consequences of adverse-witness no-shows from the State to the accused is converting a duty of the State into the Petitioner’s privilege under state law is improper.  This begs the question, what should the diligent attorney do if the adverse-witness no-shows? The value set out in White that the Director prove every element of its case without presumption is that the Petitioner is not replaced by a system in which the State presents its evidence via ex’ parte affidavits and waits for the Petitioner to subpoena the affiants if he chooses. It is this author’s opinion that had the petitioner subpoenaed the Officer and the officer not shown the result of this case may have been different.  However, the dictates of Section 577.041.4 allow for this type of foundational avoidance.

Cerutti v. Director of Revenue, 2020 WL 3026414, Mo. Ct. App. S.D. 2020)

This appeal was taken by the Director after a trial de novo wherein the Court determined that while Cerutti blew a 0.125% BAC, based upon the totality of the circumstances there was not probable cause to arrest Petitioner for DWI.  The Court of

Appeals for the Southern District determined that the trial court misapplied the law and as such, reversed and remanded the trial court’s judgment with the direction to affirm the suspension of Cerutti’s driving privileges.  In citing White v. Director of Revenue, 321 S.W.3d 298, 307-08 (Mo. banc 2010), as standing for the proposition that while no deference is owed to the final probable cause determination, the Court should defer to the facts found by the trial court, applying the law anew to those facts. Id. at 310. The COA citing to Srader v. Director of Revenue, 525 S.W.3d 600, 603-04 (Mo.App. W.D. 2017), declares that:

Probable cause:

“will exist when a police officer observes unusual or illegal operation of a motor vehicle and observes indicia of intoxication on coming into contact with the motorist. Probable cause, for purposes of section 302.505, will exist when the surrounding facts and circumstances demonstrate to the senses of a reasonably prudent person that a particular offense has been or is being committed. The level of proof necessary to show probable cause under section 302.505 is substantially less than that required to establish guilt beyond a reasonable doubt. There is a vast gulf between the quantum of information necessary to establish probable cause and the quantum of evidence required to prove guilt beyond a reasonable doubt. The trial court must assess the facts by viewing the situation as it would have appeared to a prudent, cautious, and trained police officer.”

Srader v. Director of Revenue, 525 S.W.3d 600, 603-04 (Mo.App. W.D. 2017) (quoting White, 321 S.W.3d at 309 (internal quotations and citations omitted)).

In citing to Srader quoting White, it appears to this author that the Court forgot to finish reading the discussion in White that “probable cause determinations are to be reviewed de novo under an abuse of discretion standard and give deference to the inferences the trial court made from the historical facts, including the trial court’s credibility determinations.” White at 307. Going further, the White court, citing State v. Milliorn, 794 S.W.2d 181, 183 (Mo. banc 1990) declares:

The trial court is afforded the luxury of cool deliberation—an advantage generally unavailable to persons charged with actual enforcement of the law. Nevertheless, we review the trial court’s decision on appeal under an abuse of discretion standard. Only if the trial court’s judgment is clearly erroneous will an appellate court reverse. This standard of review gives appropriate deference to the trial court’s ability to weigh the credibility of the witnesses, and acknowledges the inability of an appellate court to determine credibility from the lifeless pages of a record. Thus, if the trial court’s ruling is plausible in light of the record viewed in its entirety, this Court may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.”

Id. at 183–84 (citations omitted)(author’s emphasis)

It appears that the Court also forgot that White also stands for the proposition that in satisfying its burden the Director is not to be given any presumption of validity, nor should the driver be required to present any evidence to rebut. That presumption is not supported by the general principles of law which are applicable to court-tried civil cases or by the language of sections 302.505 and 302.535. White at 306. 

Further, the Supreme Court declared that such a practice confuses the law and contributes to inconsistent decisions at the trial and appellate level and declared that “[T]o the extent that these cases or any other prior case applied section 302.535 to create a presumption of validity of the director’s evidence, to place a burden on the driver to produce evidence that controverts or contradicts the director’s evidence for the trial court to disbelieve the evidence on a contested issue, or to require written factual findings absent a request by a party, the cases are overruled. Rather than going the route it did in this case, the COA could have relied on the post-White case of Lord v. Dir. of Revenue, 427 S.W.3d 253 (Mo. App. E.D. 2014), wherein the Eastern District determined that “these explanations go more to Lord’s ultimate guilt or innocence than to whether the arresting officer, under the circumstances, had probable cause to arrest her for driving while intoxicated. Id. at 259.

Original Judgment Unnecessary to Show Prior Convictions.

Peterman v. Director or Revenue 579 S.W.3d 268, (Mo.App. E.D 2019).

At the trial de novo  based upon the DOR’s denying Peterman her driving privileges for five years and revoking her driving license for one year based upon her two DWI convictions the Director submitted its Exhibit “A” which included a certified copy of  her Driving Record. The Driving Record listed two prior DWI convictions. Peterman’s appeal argued that that although the Driving Record was admissible, it was insufficient to establish the underlying convictions because it was not an original judgment of conviction and it did not demonstrate the points were assessed after her convictions. In its analysis the Court first determined that Section 302.010(3) stands for the proposition that when a driver appeals any conviction that could result in the assessment of points under Section 302.302, the date on which the points are assessed is the “original judgment of conviction,” while the date on which the suspension or revocation begins is the date of the “final judgment affirming the conviction.” (579 S.W.3d 268, 272). The Eastern District went on to declare that at every TDN there is a three-part burden shifting scheme. First, the driver has the initial burden of showing he or she is entitled to a driver’s license. Second, once the driver meets this initial burden, the burden of production switches to the Director to establish by a preponderance of the evidence that the driver is not qualified for driving privileges, and, Third, the burden shifts back to the driver to establish the facts relied on by the director are untrue or legally insufficient. Based upon the above analysis, the Eastern District affirmed the Circuit Court’s holding that petitioner’s driving record was sufficient to establish petitioner’s underlying convictions for DWI and that the driving record provided by the Director was sufficient to prove DWI convictions, as required to support denial of driving privileges.

Driving Includes Operating a Vehicle

Anderson v. Director of Revenue, 589 S.W.3d 40 (Mo. Ct. App. E.D.2019)

The Director revoked Anderson’s license for a period of one year due to Anderson’s refusal to submit to a chemical test, in violation of Section 577.041, RSMo  The COA started its analysis with the fact that if a person under arrest refuses to submit to an officer’s request for a chemical test, for the Court to uphold the revocation the Director must show (1) the person was arrested or stopped, (2) the officer had reasonable grounds to believe that the person was driving a motor vehicle while in an intoxicated condition, and (3) the person refused to submit to a chemical test. Section 577.041.4. At issue in this case was whether the Director established that the officer had probable cause to believe Anderson was driving while intoxicated. (Author’s note: In chemical cases where a result is obtained, unlike in cases where the chemical test was refused, the Petitioner/driver may contest actual driving. See Hinnah v. Dir. of Revenue, 77 S.W.3d 616, 622 (Mo. banc 2002).  Absurd or not, that is what the statute allows.).

Here, because Anderson’s vehicle was not moving, the issue is not whether he drove, but whether he operated the car while he was intoxicated. Here the issue is driving WHILE intoxicated.  Anderson’s counsel argued that probable cause is still ultimately a determination based on the facts and circumstances of the particular case.  However, the Court reasoned that the motor of the vehicle was functioning at the time of the encounter with Anderson passed out in the driver’s seat.  Further, Anderson did not dispute the evidence supporting probable cause to find he was intoxicated at the time the officer encountered him. Therefore, based upon the facts and circumstances presented, the COA determined there was probable cause to believe Anderson operated the vehicle in an intoxicated condition based on the information available to the arresting officer at the time.

PRACTICE TIP:   Prosecutors  and the Director both love to argue that the charge is Driving While Intoxicated not Intoxicated While Testing. I have a tendency to counter this argument with the fact that it is Driving While Intoxicated not Intoxicated While Testing.

Revocations Distinguished

Romines v. Director of Revenue, 581 S.W.3d 735 (Mo. Ct. App. S.D. 2019)

After a trial de novo from a revocation for refusing a chemical test, the trial court reinstated driver’s license for lack of proof that driver was driving while intoxicated.  Unlike Anderson  v.  Director of Revenue,  589 S.W.3d 40  (Mo. Ct. App. E.D.2019), this is a refusal case unlike where the chemical test was obtained and the Petitioner/driver may contest actual driving. Hinnah v. Dir. of Revenue, 77 S.W.3d 616, 622 (Mo. banc 2002).  Absurd or not, that is what the statute allows.  Director’s burden in a refusal case under section 577.041 is different from the burden in a hearing under section 302.535 which deals with a suspension or revocation for driving with an excessive blood alcohol content not for refusal to take a chemical test. Storck  v.  Dir. of Revenue,  59 S.W.3d 545  (Mo.App. E.D.2001). In essence, the COA declared that the relevant inquiry is not whether the person “actually was driving [while intoxicated] but whether the officer who requested the test had reasonable grounds to believe that the licensee was driving while intoxicated.”  581 S.W.3d 735,740 (Mo. Ct. App. S.D. 2019)

Notice Okay

Carter v. Director of Revenue, 584 S.W.3d 811 (Mo. Ct. App. S.D. 2019)

The dates that are the crux of this appeal, are as follows:

On February 14, 2018, Carter was arrested for driving while intoxicated and a epical test was conducted producing a result of 0.166%. Carter requested an administrative hearing which was held on September 4, 2018.  The hearing officer’s “Findings of Fact and Conclusions of Law” were mailed to both Carter and his attorney stating that the “Date of Mailing to Petitioner” was September 5, 2018, and that the “Date of Suspension” was “September 20, 2018.  The notice sent to both Carter and his attorney included there following language: “This is the final decision of the Director of Revenue. You have 30 days from September 05, 2018, to appeal this decision to the circuit court in your county of residence. 

Carter filed a PFR on September 21, 2018, asserting that his “privilege to drive a motor vehicle in Missouri will be suspended effective October 7, 2018.  The DOR filed a motion to dismiss the petition arguing that because he did not file a petition for trial de novo within fifteen days as required by § 302.530.6, he failed to exhaust his administrative remedies.  The Trial Court, after hearing arguments on the motion to dismiss granted the DOR’s motion, Carter appealed arguing  section 302.311, RSMo. and/or Section 302.530.7, RSMo. were controlling[,] not section 302.530.6, RSMo.. The COA upheld the trial Court’s ruling.  In coming to its determination that the TC lacked jurisdiction the COA refused to engage in the lengthy due process analysis, policy discussion, or even delve into statutory interpretation as Carter had hoped but rather addressed under a rationale of stare decisis.  In Coming to its decision the COA declared that:

The terminal paragraph of the administrative hearing officer’s “Findings of Fact and Conclusions of Law”: “Petitioner’s privilege to drive in the state of Missouri is hereby suspended as authorized and required by Sections 302.505 and 302.525, RSMo.” The first two sentences of the “NOTICE,” positioned directly after the administrative hearing officer’s “Findings of Fact and Conclusions of Law,” state: “If you do not agree with the decision made by the department, you may file a petition for Trial DeNovo in the Circuit Court in the county of arrest. You must file the petition with the court by the effective date of your suspension/revocation.” Any possible confusion as to the import of this language is alleviated in the “Final Order Cover Sheet,” which states: “Your base privilege (Class E, F or M) to drive will be suspended on September 20, 2018[,]” which was fifteen days after the DOR mailed the notice to Carter and his attorney (i.e., September 5, 2018). (Emphasis added).

584 S.W.3d 811,816 (Mo. Ct. App. S.D. 2019)

Thus, because Carter filed a petition for trial de novo after the 15 day allotted period, the trial Court lacked jurisdiction to even hear Carter’s argument. 

Of note, the Court of appeals makes reference to the Supreme Court decision of 

Carvalho v. Director of Revenue, SC97394, 586 S.W.3d 262, 272, 2019 WL 1247086, (Mo. banc Mar. 19, 2019), where the Court citing this very treatise declared:

the person can turn to public sources to learn about the remedial procedures available to him. One such “public source”—available at the time of the events underlying this appeal—touches the issue at the heart of Carter’s challenge rather pointedly (and accurately):

The appeal deadline is quick (15 days) and final (train the staff!). The petition of appeal for judicial review pursuant to section 302.535, also known as petition for trial de novo, must be filed within that 15-day period or the decision of the Missouri Department of Revenue at the administrative hearing shall be final. The period referred to in this statute begins to run on date of the mailing of administrative decision. The attorney needs to have the client not miss this deadline! Have everyone in the office well-versed in the rule…. Err on the side of filing the appeal[.]

42 Mo. Prac., Missouri DUI Handbook, § 13:17 (3rd ed.) (internal footnotes omitted).

Judicial Review De Novo Explained

Waters v. Director of Revenue, 588 S.W.3d 209 (Mo. Ct. App. W.D. 2019)

At a Trial de’ Novo challenging the suspension of her driving privileges as a result of her driving with a blood-alcohol content above the legal limit, Waters argued that her due process rights were violated during the administrative hearing. After the TDN the trial court issued findings of fact, conclusions of law, and judgment sustaining the suspension Waters filed a motion to set aside the Judgment (“motion to set aside”) requesting, inter alia, that the trial court make findings of fact and conclusions of law regarding whether the trial court had authority to consider her allegations that her due process rights were violated during the administrative hearing.  The trial court declared that de novo review does not afford a trial court the authority to review alleged errors during an administrative hearing.  

In a single point on appeal Waters argues the trial court erred in denying her motion for summary judgment and in denying her continuing objection regarding the trial court’s authority in a trial de novo to hear and determine her allegations of due process violations that occurred at the administrative hearing.  Of note by the COA is that:  “Waters did not ask The Court to determine whether a violation of her rights to due process took place during the administrative hearing.” 588 S.W.3d 209, 213 (Mo. Ct. App. W.D. 2019). In determining that the trial court’s understanding of its role in a trial de novo was correct the COA sets forth that Section 302.530.7; section 302.535 and Section 302.535.1 provides that a trial do novo “shall be conducted pursuant to the Missouri rules of civil procedure and not as an appeal of the t decision pursuant to chapter 536.” 588 S.W.3d 209, 214 (Mo. Ct. App. W.D. 2019).  Further the COA declared that while a trial de novo follows an administrative hearing, it is an original proceeding and is not designed or intended to review the underlying administrative proceeding for alleged error and complaints about the outcome of, or “evidence admitted during, an administrative hearing which results in the suspension of the driver’s license are irrelevant.” 588 S.W.3d 209, 215  (Mo.  Ct.  App. W.D. 2019).

Foundation for Test Results Sufficient Without Printout

Moore v. Director of Revenue, 2020 WL 202109, Mo. Ct. App. W.D. 2019)

The Director in an appeal from the Circuit COurt’s denial of a new trial based upon a finding that the breath results were not admissible in a Trial de’ Novo based upon the Director’s failure to show strict compliance with the operational checklist set forth in 19 CSR 25-30.060(3) based upon the AS-IV’s printer’s loss of power resulting in both the commissioner and the TC determining the test results were per se unreliable and inadmissible. 

In reversing, the COA rationalized that circuit court erroneously applied the law in excluding the test results because there was no evidence the machine malfunctioned or that the digital readout showing Moore’s BAC was 0.124% was not accurate or otherwise reliable particularly since the BAC on the breathalyzer ticket that was printed later once the printer was reconnected to electrical power matched the digital readout.  In coming to its determination the COA while agreeing with the circuit court that this checklist contemplates that the printer will be powered on through the completion of steps 4 through 12, and that as a result, when the printer lost power here Officer Snyder failed to strictly comply with the procedural requirements set forth by the Department of Health for administering a breathalyzer test using the Alco-Sensor IV, citing  Shine v. Dir. of Revenue, 807 S.W.2d 160, 162-63 (Mo.App.E.D. 1991) and  Tomkins v. McNeil, 782 S.W.2d 400, 401-02 (Mo.App.W.D. 1989).  The Court has consistently held that the failure to strictly comply with the procedural requirements of breathalyzer testing does not always warrant the exclusion of breathalyzer test results where there has been substantive compliance with the rules promulgated by the Department of Health and that the admission of the printout is not necessary for Director to satisfy its prima facie burden of showing driver’s blood alcohol content. Test results as recorded in the certified Alcohol Influence Report are sufficient to establish blood alcohol content even if the printout tape is illegible or not produced.”). Therefore, as the COA so eloquently put it, the legislative intent is not to protect the rights of individuals by requiring the police and Director to follow the rules that they hold the individual citizenry to but rather simply to vindicate our repeated holding that “[t]he object of the statute and its procedural process is to rid the highways of drunk drivers.” Shine, 807 S.W.2d at 163.

Foundation for Implied Consent Discussed

Goforth v. Director of Revenue, 593 S.W.3d124 (Mo. Ct. App. W.D. 2020)

On judicial review of an administrative revocation for refusal to take a test, Petitioner argued that absent some evidence he ever operated a vehicle on the public highways, under section 577.020.1 consent is not implied and no sanction can be imposed for refusing to submit. The COA in coming to the conclusion that the evidence presented by the Director supported an inference that Petitioner drove on a public highway and thus was subject to 577.020.1 shows once again that the object of DWI law is not to protect the rights of individuals but rather  “[t]he object of the statute and its procedural process is to rid the highways of drunk drivers.” (see Shine, 807 S.W.2d at 163). In reaching this conclusion, the Court declares that “it is reasonable to infer from a driver’s application for and acceptance of a Missouri driver’s license that the driver will operate a vehicle on the public highways of Missouri after receipt of that license.” While this may be a logical assumption, to start with this as the basis for a decision as to driving while intoxicated is flawed because the simple fact that a person may drive on public roadways does not mean they will do so while impaired.  However, the COA goes on to iterate that: “even if we disregard that Goforth possessed a valid Missouri driver’s license, other substantial evidence permitted the inference that Goforth’s refusal was valid because he impliedly consented to submit by operating a vehicle on the public highways in this state.” In this author’s opinion, the COA does not have to disregard Petitioner had a valid license rather it adds flawed logic to justify a conclusion that is not the direct result of the of the premises that having a valid license does not mean a person necessarily accurate to infer or assume that simply because a person possesses a valid license that they will operate a vehicle on the public highways of Missouri after receipt of that license. Further, this is not necessary to reach the same conclusion because there was enough other evidence to permit the inference that Goforth’s refusal was valid because he impliedly consented to submit by operating a vehicle on the public highways in an intoxicated state including that he was found in the driver’s seat of a running vehicle which was parked in the parking lot of a fast-food restaurant.  Goforth also told the responding officer that he had been drinking earlier in the evening at a different restaurant.  Thus the contention that because he had a valid license has no relevance to whether he was driving.

Reasonable Grounds Shown

 Smith v. Dir. of Revenue, 594 S.W.3d 282 (Mo.App. W.D. 2020). 

If you take anything from this section take this statement and put it on your computer screen. Use it as your mantra: Whether there is probable cause to arrest depends on the information  in the officerspossession prior to the arrest and requires more than an inchoate or unparticularized suspicion or hunch.

In finding that the arresting officer had probable cause to believe that the Petitioner was DWI  affirming the TC revocation of his driving privileges the COA citing White v. Dir. of Revenue, 321 S.W.3d 298, 307-08 (Mo. banc 2010) declared that: “unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law the COA will affirm the TC’s judgement. 594 S.W.3d 282, 284 (Mo.App. W.D. 2020). In affirming the TC, the COA citing Rain v. Dir. of Revenue, 46 S.W.3d 584, 588 (Mo. App. E.D. 2001). declared what should be every attorney who does DWI’s Mantra “Probable cause requires more than a mere suspicion of intoxication, but less than absolute certainty.” You as the attorney MUST push the officer to articulate how, according to his training, the significance of the observations made in the DUI arrest decision and make them EXPLAIN the relevance of this observation both in general and as it relates to SPECIFIC encounter.

Remember, the COA will always defer to the TC’s determination of credibility.  As the Supreme Court declared in Hinnah v. Dir. of Revenue, 77 S.W.3d 616, 620 (Mo. banc 2002): and the COA iterates here:

The trial court had evidence to support a finding of probable cause, but was free as well to draw the conclusion that there was no probable cause. Either conclusion was sustainable under the record, depending upon the trial court’s assessment of the credibility of the officer’s testimony.

Id. At 622

Make your record on appeal.  Tie the officer to their report and make them explain specifically, according to their training what reasonable articulable suspicions lead them to believe your client was DWI.

Groom v. Dir. of Revenue, 2020 WL 2843894, (Mo.App. E.D. 2020)

Groom an 18 year old was stopped after being clocked for speeding 70/55. Following an Administrative Hearing where the Director suspended his driving privileges for DWI the trial Court sustained the Director’s suspension at a  Trial de’ Novo wherein Groom objected to the admission of the Director’s Exhibit “A” as it related to radar in relation to the speed of his vehicle.

Groom’s appeal argued that the TC abused its discretion when it admitted the radar evidence without which there would not be PC to have arrested him.  In this case, Groom argued that Section 302.505.1 allows the Petitioner may contest the basis of the stop.  As pointed out previously, Section 302.505.1 which states as follows allows that if the person is over twenty-one the focus is on the probable cause to arrest while if under twenty-one the focus is on probable cause to stop

The department shall suspend or revoke the license of any person upon its determination that the person was arrested upon probable cause to believe such person was driving a motor vehicle while the alcohol concentration in the person’s blood, breath, or urine was eight-hundredths of one percent or more by weight, based on the definition of alcohol concentration in section 302.500, or where such person was less than twenty-one years of age when stopped and was stopped upon probable cause to believe such person was driving while intoxicated in violation of section 577.010, or driving with excessive blood alcohol content in violation of section 577.012, or upon probable cause to believe such person violated a state, county or municipal traffic offense and such person was driving with a blood alcohol content of two-hundredths of one percent or more by weight

Section 302.505.1 (West 2020)

According to the COA while the Missouri Supreme Court found in Baldwin v. Dir. of Revenue, 38 S.W.3d 401 (Mo. banc 2001), that there were, as Groom argued, two separate clauses. Groom at 2. The Supreme Court did not address whether the second clause relating to was stopped could be a  “special safeguard,” such that probable cause for the stopmay have come into play even though the Court in Riche v. Director of Revenue, 987 S.W.2d 331, 337 (Mo. banc 1999) allows for such safeguards. Id. at 2.  In determining that there is no special safeguard relating to the stop as opposed to the arrest, the Court relied on Barrett v. Dir. of Revenue, 286 S.W.3d 840 (Mo. App. E.D. 2009), wherein the Court held that “a person less than twenty-one years of age can also be subject to suspension or revocation under section 302.505.1 if that person was stopped upon probable cause to believe such person was driving while intoxicated in violation of section 577.010 RSMo.” It appears that the Court is saying that because the officer had probable cause to stop Groom for speeding (the radar showing 70/55 ), as opposed to DWI, the officer was then allowed to develop probable cause for the subsequent DWI arrest because as the court points out, probable cause for a DWI may be developed after the initial stop. See Peters v. Dir. of Revenue, 35 S.W.3d 891, 895 (Mo. App. S.D. 2001).  The problem with this is that it ignores that the driver in Peters

was over 21 so this does not address the Safeguard issue. Further, the Court then determined that a foundational requirement for the radar evidence was not warranted since it was not required for the probable cause requirement for the Director to suspend Groom’s license

Haffner v. Dir. of Revenue, 2020 WL 2529528, (Mo.App. E.D. 2020)

Background: Respondent was involved in an accident wherein it was later determined he had a 0.175% BAC. Prior to the paramedics arrival, the LEO began investigating. While speaking with Haffner, she  informed him that she was the driver of the overturned vehicle.  The Officer observed Haffner’s breath smelled like alcohol, she had watery, blood-shot eyes, her speech was slurred, and she seemed confused and disoriented. Upon being asked if she had been drinking Haffner responded:”I had some drinks with my friends[.] (sic) what’s that have to do with anything [?] (sic)” @1. After the Director suspended her license pursuant to section302.505 Haffner filed for a Trial de’ Novo and after the TC upheld the suspension she requested a rehearing wherein the TC determined that the Director failed to prove by a preponderance of the evidence that Haffner had been arrested at the time she submitted to the blood alcohol test.” Accordingly, the trial court rescinded the suspension of Haffner’s license. Haffner filed a Motion to Amend the Judgment on March 22, 2019, and the trial court heard argument on the motion on April 19. The trial court denied Haffner’s motion on May 22, 2019. Relying on the Supreme Court case of  Smither v. Dir. of Revenue, 136 S.W.3d 797, 799 (Mo. banc 2004), the Court reasoned that”  “while telling someone they are under arrest is generally not sufficient to actually effectuate an arrest, “in the case of an injured suspect who is already immobilized …, it is impractical to require officers to physically restrain the suspect further.”Id. 799. Haffner argued that because the Officer left her unattended to retrieve the collected blood, “no reasonable person would feel free to leave under those circumstances.” Haffner @5

Cerutti v. Director of Revenue, 2020 WL 3026414, Mo. Ct. App. S.D. 2020)

In this case, the Southern District, although it did not utilize the Eastern District case of Lord v. Dir. of Revenue, 427 S.W.3d 253 (Mo. App. E.D. 2014), revisited the issue of innocent explanations going more to the ultimate guilt or innocence rather than to whether the arresting officer, under the circumstances, had probable cause to arrest.  In determining that the Trial Court misapplied the law and reversed and remanded its judgment with the direction to affirm the suspension of Cerutti’s driving privileges citing White v. Director of Revenue, 321 S.W.3d 298, 307-08 (Mo. banc 2010), as standing for the proposition that while no deference is owed to the final probable cause determination, this Court should defer to the facts found by the trial court, applying the law anew to those facts. Id. at 310. The COA citing to Srader v. Director of Revenue, 525 S.W.3d 600, 603-04 (Mo.App. W.D. 2017), declared that:

Probable cause:

“will exist when a police officer observes unusual or illegal operation of a motor vehicle and observes indicia of intoxication on coming into contact with the motorist. Probable cause, for purposes of section 302.505, will exist when the surrounding facts and circumstances demonstrate to the senses of a reasonably prudent person that a particular offense has been or is being committed. The level of proof necessary to show probable cause under section 302.505 is substantially less than that required to establish guilt beyond a reasonable doubt. There is a vast gulf between the quantum of information necessary to establish probable cause and the quantum of evidence required to prove guilt beyond a reasonable doubt. The trial court must assess the facts by viewing the situation as it would have appeared to a prudent, cautious, and trained police officer.”

Srader v. Director of Revenue, 525 S.W.3d 600, 603-04 (Mo.App. W.D. 2017) (quoting White, 321 S.W.3d at 309 (internal quotations and citations omitted)).

In citing to Srader quoting White, it appears to this Author that the Court forgot to finish reading the discussion in White that “probable cause determinations are to be reviewed de novo under an abuse of discretion standard and give deference to the inferences the trial court made from the historical facts, including the trial court’s credibility determinations.” White at 307. Going further, the White court, citing State v. Milliorn, 794 S.W.2d 181, 183 (Mo. banc 1990) declares:

The trial court is afforded the luxury of cool deliberation—an advantage generally unavailable to persons charged with actual enforcement of the law. Nevertheless, we review the trial court’s decision on appeal under an abuse of discretion standard. Only if the trial court’s judgment is clearly erroneous will an appellate court reverse. This standard of review gives appropriate deference to the trial court’s ability to weigh the credibility of the witnesses, and acknowledges the inability of an appellate court to determine credibility from the lifeless pages of a record. Thus, if the trial court’s ruling is plausible in light of the record viewed in its entirety, this Court may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.”

Id. at 183–84 (citations omitted)(Author’s emphasis).

It appears that the Court also forgot that White stands for the proposition that in satisfying its burden the Director’s evidence is not to be given any presumption of validity, nor should the driver be required to present any evidence to rebut that presumption declaring that such presumption is not supported by the general principles of law which are applicable to court-tried civil cases or by the language of sections 302.505 and 302.535. White at 306. 

The Supreme Court went on to declare that such a practice confuses the law and contributes to inconsistent decisions at the trial and appellate level and declared that “[T]o the extent that these cases or any other prior case applied section 302.535 to create a presumption of validity of the director’s evidence, to place a burden on the driver to produce evidence that controverts or contradicts the director’s evidence for the trial court to disbelieve the evidence on a contested issue, or to require written factual findings absent a request by a party, the cases are overruled. Rather than going the route it did in this case, the COA could have relied on the post-White case of Lord v. Dir. of Revenue, 427 S.W.3d 253 (Mo. App. E.D. 2014), wherein the Eastern District determined that “these explanations go more to Lord’s ultimate guilt or innocence than to whether the arresting officer, under the circumstances, had probable cause to arrest her for driving while intoxicated. Id. at 259.

Certification of the Simulator Within 365 Days of Previous Certification Satisfies 19 C.S.R. 25-30.051(4):

Sledd v. Director of Revenue, 503 S.W.3d 347 (Mo. Ct. App. S.D. 2016)

  Title 19 C.S.R. 25-30.051(4) requires that the simulator used to calibrate breath testers shall be certified ““annually.””

““The primary rule of construction is to ascertain the agency’s intent from the language used and give effect to that intent, while considering the words used in their plain and ordinary meaning.”” Rundell v. Dir. of Revenue, 487 S.W.3d 496, 500 (Mo. App. E.D. 2016). Title 19 C.S.R. 25-30.051 does not define the term ““annually”” … ““In the absence of a definition in the regulation, the words will be given their plain and ordinary meaning &hellip4;….”” Rundell, 487 S.W.3d at 500.1

  Annually, therefore, means within 365 days of the last certification as opposed to within a calendar year.

Only Simulator Certification in Effect at the Time of Maintenance is Relevant to Lay a Proper Foundation:

Carey v. Director of Revenue, 514 S.W.3d 679 (Mo. Ct. App. E.D. 2017)

  The Director of Revenue has promulgated regulations regarding the maintenance of breath machines. It must be established that these regulations were strictly followed in order for the results to be admissible at trial.

““Maintenance checks”” are defined by the Department as ““the standardized and prescribed procedures used to determine that machine is functioning properly and is operating in accordance with the operational procedures established by the Department.”” 19 CSR 25-30.011(2)(F).2

  In laying the proper foundation, only the certification in effect when the breath analysis occurred is relevant. There is no requirement of an unbroken chain of annual certifications back to 2013.

Simulator Certificate for Each Year Leading up to the Year of the Breath Test Not Required:

Hickenbotham v. Director of Revenue, 523 S.W.3d 491 (Mo. Ct. App. E.D. 2017), reh’g and/or transfer denied, (May 16, 2017) and transfer denied, (Aug. 22, 2017)

  DHSS regulations regarding breath testing requires all approved machines to undergo maintenance checks ““at intervals not to exceed 35 days.”” 19 CSR 25-30.050, 30.031(3).

To demonstrate compliance with the regulation, the Director must offer a maintenance report showing that a maintenance check has been performed on the breathalyzer within 35 days prior to the driver’s breath test. Sellenriek v. Director of Revenue, 826 S.W.2d 338, 340 (Mo. banc 1992).3

  DHSS updated the regulations in 2012 adding a new requirement that any simulator ““shall be certified against a National Institute of Standards and Technology (NIST) traceable reference thermometer or thermocouple between January 1, 2013, and December 31, 2013, and annually thereafter.”” 19 CSR 25-30.050, 30.051. This foundation does not require proof of all certifications going back to 2013 and, as the Court points out, such an interpretation of the regulation ““fails to account for simulators brought into use any time after 2013, an illogical reading leading to irrational results.””4

Section 302.505 Applies to the Operation of Motor Vehicles While Intoxicated, Not Motorized Bicycles:

McMillin v. Director of Revenue, 520 S.W.3d 513 (Mo. Ct. App. W.D. 2017)

  According to V.A.M.S. &s;§302.010(10), a motorized bicycle was not a ““motor vehicle,”” and thus McMillin’s arrest for driving a motorized bicycle with blood alcohol concentration level in excess of statutory limit did not support the administrative revocation of his driving license. The plain language of V.A.M.S. &s;§302.010(10) clearly and unambiguously excludes motorized bicycles from the definition of motor vehicle throughout Chapter 302, which applies to the operation of a motor vehicle while intoxicated. Since McMillin was operating a motorized bicycle at the time of his arrest, he cannot be subject to the civil penalties of &s;§302.505.1.

Probable Cause Shown:

Srader v. Director of Revenue, 525 S.W.3d 600 (Mo. Ct. App. W.D. 2017)

  In an administrative action to suspend a driver’s license for driving while intoxicated, the director must establish by a preponderance of the evidence that:

  (1) the driver was arrested on probable cause for violating an alcohol-related offense; and

  (2) the driver’s blood alcohol concentration exceeded the legal limit of .08 percent. White v. Director of Revenue, 321 S.W.3d 298, 307–-08 (Mo. 2010).5

  ““[P]robable cause will exist ‘‘when a police officer observes unusual or illegal operation of a motor vehicle and observes indicia of intoxication on coming into contact with the motorist.’’””6 According to the Court, in this case, the officer observed multiple indicia of intoxication including erratic driving, slurred speech, glassy eyes, inconsistent statements, and results of a preliminary breath test before arresting Srader at the roadside, and those facts established probable cause to justify Srader’s arrest for driving while intoxicated.

Breathalyzer Used in the Right Place:

Marquart v. Director of Revenue, 549 S.W.3d 56 (Mo. Ct. App. E.D. 2018)

  The foundation for admitting into evidence the results of a breath test include proof that the testing device used complied with a Department of Health regulation. That regulation requires the Director to establish that the test was performed:

(1) using the approved techniques and methods of the [Department] of Health; (2) by an operator holding a valid permit; (3) on equipment and devices approved by the Division of Health.”” Bartholomew v. Dir. of Revenue, 462 S.W.3d 465, 469 (Mo, App. E.D. 2015) (citing Irwin v. Dir. of Revenue, 365 S.W.3d 266, 269 (Mo. App. E.D. 2012).7

  In this case, Marquet contested that the officer did not use approved techniques and methods of DHSS in that 19 C.S.R. 25-30.050 refers only to specialized vehicles used at DWI checkpoints. The Court determined that the regulation sets out an exclusion for ““mobile use”” in two specific locations: ““boats”” and ““outside areas.”” Therefore, the current language of 19 C.S.R. 25-30.050 only requires the unit be used either inside a building or inside a vehicle used in DWI enforcement.

Calculation of the 15-minute Observation Period Enumerated in 19 C.S.R. &s;§25-30.011(2)(H):

Smith v. Director of Revenue, 560 S.W.3d 898 (Mo. Ct. App. W.D. 2018)

  At issue in this case is the calculation of the 15-minute observation period enumerated in 19 C.S.R. &s;§25-30.011(2)(H). The Court determined that:

19 C.S.R. &s;§25-30.011(2)(H) defines the ““[o]bservation period”” as ““the minimum fifteen- (15-) minute continuous period that ends when a breath sample has been provided into the approved breath analyzer.””8

  Therefore, the Court interpreted 19 C.S.R. &s;§25-30.011(2)(H) to require the 15 minutes end with the recording of a breath sample, not the starting of the breath sample machine. The Court further determined that BAC test results are admissible through either the alcohol influence report or an officer’s testimony. Therefore, the AIR is sufficient for the Director’s foundation.

Section 302.505.1 Requires the Director to Establish Actual Driving:

Boggs v. Director of Revenue, 564 S.W.3d 693 (Mo. Ct. App. W.D. 2018), reh’g and/or transfer denied, (Nov. 14, 2018) and transfer denied, (Jan. 29, 2019)

  At trial de novo, the arresting officer testified, and the Director introduced several exhibits, including the trooper’s accident report, the trooper’s alcohol influence report, and a video of the trooper’s interaction with Boggs. No other evidence was submitted by the Director, and Boggs, the defendant, did not testify. The testimony consisted of the facts that Boggs wrecked a vehicle at 11:00 p.m., consumed no alcohol after the wreck, and was intoxicated as defined by statute at 4:41 a.m. Section 302.505.1 requires the Director to:

suspend or revoke the license of any person upon its determination that the person was arrested upon probable cause to believe such person was driving a motor vehicle while the alcohol concentration in the person’s blood, breath, or urine was eight-hundredths of one percent or more by weight, based on the definition of alcohol concentration in section 302.500[.]9

  Therefore, the Court of Appeals determined that the Director failed to provide sufficient evidence that Boggs was intoxicated at the time of the accident.

Report Irrelevant to Test Result:

Roam v. Director of Revenue, State, 559 S.W.3d 1 (Mo. Ct. App. E.D. 2018)

  DHSS promulgated regulations regarding the maintenance of breath machines to require periodic maintenance, with which the Director of Revenue must show strict compliance. ““At issue here is the regulation requiring maintenance checks at 35-day intervals.””10 The Court of Appeals declared that trial court erroneously excluded the BAC results because the maintenance report had not been filed with DHSS. Under Turcotte v. Director of Revenue, State of Mo., 829 S.W.2d 494, 495 (Mo. Ct. App. E.D. 1992), the filing of the report with DHSS is not mandatory and failure to do so does not render the BAC results inadmissible.11

Chemical Refusal:

Section 302.505 Does Not Require Reasonable Suspicion for the Stop:

Williams v. Director of Revenue, 521 S.W.3d 658 (Mo. Ct. App. E.D. 2017)

  In an administrative suspension hearing where the driver is over the age of twenty-one, the Director must only establish probable cause to arrest the driver. Requiring the Director to prove there was reasonable suspicion to justify the stop while proper in the criminal trial is improper here. The Court of Appeals held that the Director is only required to prove there was probable cause to arrest Williams for driving in violation of an alcohol related offense, relying on Riche v. Director of Revenue, 987 S.W.2d 331 (Mo. 1999).12

Silence Constitutes Refusal:

Allison v. Director of Revenue, 525 S.W.3d 127 (Mo. Ct. App. W.D. 2017), reh’g and/or transfer denied, (Sept. 5, 2017)

  Pursuant to Section 577.020.1(1) (Missouri’s implied consent law), ““[a]ny person who operates a motor vehicle upon the public highways of this state shall be deemed to have given consent to … a chemical test or tests of the person’s breath, blood, saliva or urine for the purpose of determining the alcohol or drug content of the person’s blood.”” However, under Mayfield v. Director of Revenue, 100 S.W.3d 847, 850 (Mo. Ct. App. S.D. 2003), ““[r]evocation is conditioned upon an officer making a ‘‘statutorily sufficient ““request””  ’’ that a driver submit to chemical testing.”” ““A ‘‘refusal’’ occurs when a person fails, of his or her own volition, to do what is necessary in order for the test at issue to be performed.”” However, ““[A] refusal to submit to a chemical test need not be shown by the driver’s express refusal upon the initial request.”” Hursh v. Director of Revenue, 272 S.W.3d 914, 917 (Mo. Ct. App. W.D. 2009). When the trooper asked Allison, the defendant, if she consented to a breath test she remained silent. By failing or refusing to respond, Allison’s actions constituted a refusal and the fact that she was handcuffed in a police car when first asked did not constitute coercion or influence her ability to respond to the officer’s question whether she would submit to testing.

Reading Implied Consent Law Is Enough:

Trentmann v. Director of Revenue State, 541 S.W.3d 39 (Mo. Ct. App. E.D. 2018)

  Relying on White v. Director of Revenue, 321 S.W.3d 298, 309 (Mo. 2010), the Court determined that the officer’s observations of a moderate odor of intoxicants, bloodshot and watery eyes, and mumbled speech would lead a cautious, trained, and prudent officer at the scene at the time of the arrest to believe Trentmann, the defendant, had driven while intoxicated. Trentmann argued that because the time of the crash was unknown, a reasonably cautious, prudent, and well-trained officer could not reasonably believe he drove while intoxicated without knowing when the crash occurred. However, the precise time of the crash is unnecessary for purposes of determining probable cause. Trentmann next argues that the trial court erroneously applied the law because the officer violated statutory notice requirements by failing to state multiple reasons for requesting a breath test after arresting Trentmann.

  The Court concluded that Section 577.041 requires an officer to give a driver certain information before demanding a chemical test and reading the implied consent law is sufficient to satisfy those requirements.

Call to Attorney Was Not Private:

Roesing v. Director of Revenue, 573 S.W.3d 634 (Mo. 2019)

  This case presents the question whether the right to attempt to contact an attorney pursuant to section 577.041.1 includes the right to speak to the attorney privately, should the attorney be contacted successfully. The Supreme Court declared that:

Privacy is inherent in a driver’s statutory right to counsel. To interpret section 577.041.1 otherwise would contradict section 577.041.1’s purpose of providing drivers with a reasonable opportunity to have a meaningful contact with an attorney in order to decide whether to submit to a chemical test and, accordingly, would create absurd results. (emphasis added).

  Because the Director failed to prove that Roesing was not prejudiced by the officer’s depriving Roesing of his right to confer privately with his attorney, his refusal to consent to the chemical test was not voluntary and unequivocal under section 577.041.

Warning Sufficient:

Mullin v. Director of Revenue, 556 S.W.3d 626 (Mo. Ct. App. W.D. 2018)

  Pursuant to Missouri’s Implied Consent Law, ““[i]f a driver refuses to submit to chemical analysis to determine [her] blood alcohol content, that driver’s license will be subject to revocation pursuant to section 577.041.”” Allison v. Director of Revenue, 525 S.W.3d 127, 130 (Mo. Ct. App. W.D. 2017), reh’g and/or transfer denied, (Sept. 5, 2017). However, said revocation is conditioned upon an officer making a statutorily sufficient ““request”” that a driver submit to chemical testing. The reading of the implied consent advisory is sufficient to meet these requirements. The purpose of the warning, according to the Supreme Court in Teson v. Director of Revenue, State of Mo., 937 S.W.2d 195, 197 (Mo. 1996), is to inform an apparently inebriated driver of the consequences of the refusal, not the consequences of taking the test. In this case, the Officer’s explanation of the prosecutor’s practices in cases of DWI versus refusal was sufficient under 577.041.1.

Alcohol Odor and Bloodshot Eyes Insufficient for Probable Cause:

Rocha v. Director of Revenue, 557 S.W.3d 324 (Mo. Ct. App. W.D. 2018)

  Post White v. Director of Revenue, 321 S.W.3d 298 (Mo. 2010), an Officer’s observations of bloodshot eyes, which the driver attributed to fatigue, and an odor of alcohol, which the driver attributed to drinking the night before, with no additional evidence is not sufficient to establish probable cause for an arrest.

Warning Given for Breath, Not Blood:

Howe v. Director of Revenue, 575 S.W.3d 246 (Mo. Ct. App. E.D. 2019), reh’g and/or transfer denied, (Mar. 21, 2019) and transfer denied, (June 4, 2019)

  Section 577.020 governs implied consent for chemical tests and states that a person is deemed to have consented to having their breath, blood, saliva, or urine chemically tested to determine their blood alcohol content. Before any finding that the defendant refused to submit to any blood test is a corresponding finding under Section 577.041.2 that her refusal was valid under Sections 302.574.4, 577.041.2. The defendant’s refusal could only be valid if the officer informed her that her refusal to submit to the blood test would result in the revocation of her license. The officer’s reading of the implied consent warning prior to the breath test was not sufficient to negate any requirement that he repeat the implied consent warning before the blood test. While the officer was permitted by statute to request two chemical tests, he must read the implied consent advisory before both tests. In the present case, because he did not read the implied consent prior to requesting the defendant’s blood, only his first request for the breath test complied with the statutory requirements of Section 577.041.2.

Reasonable Cause Shown:

Mannino v. Director of Revenue, 556 S.W.3d 667 (Mo. Ct. App. E.D. 2018)

  On review of a revocation, whether there is probable cause to arrest depends on the information in the officer’s possession prior to the arrest and whether said information would lead a cautious, trained, and prudent officer at the scene at the time of the arrest to believe the defendant had driven while intoxicated. Said information must be available to the officer at the time of the arrest not after the arrest. The defendant’s initial arrest was for leaving the scene of an accident, so reasonable cause for that arrest was not relevant, and reasonable cause was relevant as to later arrest for driving while intoxicated. The evidence available to the officer at the time of the defendant’s arrest was that he made ““several incriminating statements to the officers, failed three field sobriety tests, and refused to submit to a chemical test of his breath.”” Further, the Court concluded that while an unidentified tip that a driver was potentially driving under the influence might not support reasonable cause, the ability of the 911 operator’s to identify the caller precludes characterization as an ““anonymous source.””

Filing of the Maintenance Report with DHSS Does Not Render the Results Inadmissible; Rather it Goes to the Performance of the Equipment:

Hearne v. Director of Revenue, 559 S.W.3d 66 (Mo. Ct. App. E.D. 2018)

  DHSS regulates the proper maintenance and operation of breath analyzer tests and requires maintenance checks on breath analyzer tests at 35 day intervals, along with the submission of a copy of the report to DHSS within 15 days.

  Foundation for entering blood alcohol test results into evidence includes approved testing equipment used by approved personnel. Under Turcotte v. Director of Revenue, State of Mo., 829 S.W.2d 494, 495 (Mo. Ct. App. E.D. 1992), the filing of the report with DHSS is not mandatory and the failure to do so goes to the performance of the equipment and does not render the results inadmissible.

Habits and Conduct Not Enough:

Thanner v. Director of Revenue, 518 S.W.3d 859 (Mo. Ct. App. E.D. 2017)

  Under Section 302.060, three or more DWI convictions result in denial or revocation of a Missouri driver’s license for ten years.

On judicial review of such a denial, the driver has the burden of producing evidence that he was qualified for a driver’s license, and the Director has the burden of producing evidence that the driver is not eligible. Kinzenbaw v. Dir. of Revenue, 62 S.W.3d 49 (Mo. 2001). The Director can meet that burden by introducing the administrative record. Id. The driver must then show that the administrative record is incorrect or the grounds for denial unlawful. Thanner, 518 S.W.3d at 859.13

  While reformed habits and conduct are necessary for issuance of a license under that statute, they are not a replacement for the passage of ten years. The defendant, at all times relevant, possessed a valid Georgia license. He argued that the Director’s denial of his application for a Missouri license violates the Compact that prescribes ““the reciprocal recognition of licenses to drive and eligibility therefor.”” V.A.M.S. &s;§302.600 art. I (b)(2). In other words, the defendant argued that Missouri must issue him a license because he had a valid Georgia license. The Court held that the Compact does not require such a result.

Breath Test in Patrol Car Permissible:

Baker v. Director of Revenue for State, 569 S.W.3d 63 (Mo. Ct. App. W.D. 2019)

  DHSS’s regulations allow an officer to administer a breath test in his patrol vehicle. 19 C.S.R. 25-30.050(1) specifically identifies the Alco-Sensor IV with Printer as a machine approved by the State of Missouri as an evidentiary breath test. 19 C.S.R. 25-30.050 goes on to say that ““[b]reath analyzers are to be used within buildings or vehicles used for driving-while-intoxicated enforcement. These breath analyzers are not approved for mobile use in boats or in outside areas.”” 19 C.S.R. 25-30.050(2) (emphasis added). The Court noted that the Eastern District had decided this exact issue in Marquart v. Director of Revenue, 549 S.W.3d 56 (Mo. Ct. App. E.D. 2018) and held that a patrol vehicle is a ““vehicle used for driving-while-intoxicated enforcement”” within the meaning of 19 C.S.R. 25-30.050(2).

  The Director of Revenue appealed the trial court’s ruling at trial de novo reinstating the petitioner’s driving privileges based on a determination that the officer’s reading of the implied consent advisory was improper. In the present case, the officer read the implied consent warning as required, which stated that a driver’s license was subject to immediate revocation on refusal to take a breath test. According to the trial court, this warning was inaccurate because the driver’s license was not immediately suspended and therefore it misinformed the driver in violation of constitutional provisions, and as such was inadmissible. The Court of Appeals (Thomas v. Director of Revenue, 575 S.W.3d 713 (Mo. Ct. App. E.D. 2018)), transferred the case to the Supreme Court because the case involved a determination of the constitutionality of the statute governing implied consent warnings. The Supreme Court retransferred case for reconsideration in light of Carvalho v. Director of Revenue, 2019 WL 1247086 (Mo. 2019), opinion modified and superseded on denial of reh’g, (Apr. 30, 2019). In Carvalho, the Supreme Court declared that:

[T]he purpose of the implied consent warning is not to obtain a driver’s consent to a breath test. …the purpose of the warning is only to inform drivers … they can withdraw that implied consent and refuse to submit to any chemical tests but, if they so choose, there will be consequences. See Kimbrell v. Director of Revenue, 192 S.W.3d 712, 716 (Mo. App. 2006).15

  Based on this rationale, the Court of Appeals reversed the trial court’s decision and remanded it, holding that the Missouri implied consent warning’s statement that a driver’s license would be ““immediately”” revoked upon refusal of a breath test was not misleading, and the breath test results were not obtained in violation of the driver’s due process rights and as such were admissible.

““Collective Knowledge”” of Officers for Probable Cause; Witness Statements Evidence Sufficient to Support Finding of Probable Cause of Intoxication:

Beasley v. Director of Revenue, 505 S.W.3d 326 (Mo. Ct. App. S.D. 2016)

  In this case, the defendant contested the trial court’s finding of probable cause based on the following: (1) Trooper Myers did not personally observe any signs of intoxication before placing him under arrest; (2) Sgt. Foster’s only involvement in the case was to investigate the accident; (3) the statements of the EMS helicopter crew, that they believed Beasley was intoxicated, were not substantial evidence, and the reports the trooper received advising that the driver was ““possibly intoxicated”” were not substantial evidence; and (5) any evidence learned after his arrest was not substantial evidence and should not have been considered by the court in its probable cause determination.

  In Tolliver v. Director of Revenue, 117 S.W.3d 191, 197 (Mo. Ct. App. S.D. 2003), the Court of Appeals determined that ““[t]here is no precise test for determining whether probable cause existed; rather, it is based on the particular facts and circumstances of the individual case.”” The Tolliver court went on to declare that ““[p]robable cause is determined by the collective knowledge and the facts available to all officers participating in the arrest, and the arresting officer need not possess all of the available information.”” In the present case, according to the court, the defendant’s argument that the trial court erred because there was not substantial evidence to support a probable cause finding that he was driving while intoxicated is flawed. The Supreme Court directs in White v. Director of Revenue, 321 S.W.3d 298, 308 (Mo. 2010) that the trial court’s judgment will be affirmed unless it is not supported by substantial evidence, is against the weight of the evidence, or erroneously declares or applies the law.

  While there is no precise test for determining whether probable cause exists, the Toliver Court did give guidance in declaring probable cause is based upon the particular facts and circumstances of every individual case and the collective knowledge and the facts available to all officers participating in the arrest. Therefore, the arresting officer need not possess all of the available information if such information is made available to him. Further, in a challenge to whether substantial evidence existed, the court does not need to even consider any contrary evidence regardless of whether the burden of proof at trial was proof by a preponderance of the evidence or by clear, cogent, and convincing evidence.

Circumstantial Evidence is Sufficient to Establish Logical Inference of Driving:

Stuart v. Director of Revenue, 488 S.W.3d 743 (Mo. Ct. App. E.D. 2016)

  Stuart appeals the trial court’s finding that the officer had probable cause to arrest him for driving while intoxicated, even though no one saw him driving. The Court of Appeals affirmed, holding that the police officer had probable cause. In reaching this decision, the Court of Appeals first pointed out that:

Probable cause, for purposes of V.A.M.S. &s;§302.505, will exist ““when the surrounding facts and circumstances demonstrate to the senses of a reasonably prudent person that a particular offense has been or is being committed.””36

  In coming to its determination and viewing all the evidence, the Court of Appeals noted that, based upon the circumstantial evidence available to the officer, including a license plate found at the scene, the officer was justified in going to Stuart’s house. At Stuart’s house, he found a vehicle with a badly damaged front-front-end as well as Stuart, who was obviously intoxicated. Stuart then admitted driving the vehicle during the crash but said repeatedly he had not consumed alcohol since arriving home after the crash. Viewing these facts most favorably to the trial court’s judgment and rejecting contradicting evidence and inferences, a prudent, cautious, and trained police officer would have developed probable cause to believe that Stuart had been driving while intoxicated.