A recent front-page article in the Post-Dispatch reported on a potential loophole in Missouri’s DWI law.  By way of background, a driver who is ticketed for suspicion of DWI and has a Blood Alcohol Content (“BAC”) of at least 0.08% (more precisely stated as 0.80 grams of alcohol per 210 liters of breath) faces two independent proceedings.  One is the standard DWI criminal prosecution by the prosecuting attorney of the jurisdiction issuing the ticket.  The other falls to the Missouri Department of Revenue (“DOR”) and is a civil administrative proceeding under which one’s driver’s license may be suspended for up to ninety (90) days for driving with an excessive BAC.  [Not addressed in this blog is the outright refusal of a driver to submit to a BAC test which might result in the loss of one’s driving privileges for an entire year.]

How do you prove that a driver was actually under the influence of alcohol?  There are several ways available to the standard prosecution – erratic driving, field sobriety tests (reciting the alphabet backwards, slurred speech, smell of alcohol, bloodshot eyes, etc.), admissions or statements of the driver or witnesses, and the BAC test.  But the DOR administrative procedure relies exclusively on the BAC test.

 In order to use the BAC test result in either a criminal or administrative hearing, , the prosecutor and the DOR must prove that the test result was “reliable”, and make that showing by proof that it was administered in strict compliance with the standards adopted by the Missouri Division of Health and Senior Services (“DHSS”).  The DHSS has promulgated a 141 page BAC operator manual.  One of those standards is that the BAC machine must be calibrated at least every 35 days.  In the past, the State only had to show that the machine had been calibrated to either 0.10%, 0.08% or 0.04%.  But on November 30, 2012 the DHSS published a new rule (apparently by mistake or simply not having thought through the consequences discussed here) that provided the machine should be calibrated to the 0.10%, 0.08% and 0.04% levels.

 Now DWI defense attorneys are having a field day challenging the admissibility of BAC test results unless the machine was tested at all three levels.  Consequently, most judges across the state are throwing out the BAC tests.  The result of this is that the DOR is losing most of its administrative revocation cases. 

 The ultimate impact, if any, on criminal prosecutions is yet to unfold.  As noted, in a criminal prosecution the State will elicit testimony from the arresting officer who can be relied upon to testify that the driver drove carelessly, smelled of alcohol, stumbled, mumbled and could not recite the alphabet.  This testimony is usually supplemented with videos from the patrol car’s dash camera showing the field sobriety testing and from the booking process at the police station.  The defendant’s actions and conduct are often enough to show a jury that he should not have been behind the wheel.  So, even without the BAC results a jury can usually find that there is sufficient other evidence to convince them that the defendant was guilty of DWI.  But some jurors may wonder why the State has not introduced the BAC results and conclude that, perhaps, the test results were not above the legal limit and acquit the defendant.

 The DHSS purports to have corrected this rule on January 29, 2014, so now the rule clearly requires that the BAC machine only be tested at one of the three levels – just like the former rule was written.  See 19 CSR 25-30.051.  However, the new (old) rule may also be subject to challenge because the DHSS adopted the change as an emergency rule, and that process may not have been appropriate.  [That is well beyond the topic of this blog.]

A large number of questions still exist.  For instance, is the BAC test thrown out if the arrest occurred during the “and” period but the trial is held when the “or” rule is in effect?  What if the arrest occurred during the former “or” period, e.g. October 30, 2012, and the trial was held during the “and” period, e.g. October 30, 2013?  Maybe these questions will never be answered by the courts, but they underscore the importance of attention to detail when a state agency is drafting rules that control the admissibility of important evidence.

 We will continue to monitor this development and update our blog when we have more information.

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