Defending DWI & DUI cases:

In Missouri, every driver who operates a motor vehicle on its highways is deemed to have given implied consent to giving a sample of breath, blood, urine or saliva to determine the alcohol content of their blood. The most common chemical test requested of a driver in the State of Missouri is a chemical breath test. The "standard" used is 0.08% blood alcohol content which gives the Prosecuting Attorney a presumption one is intoxicated. This is a rebuttable presumption in driving while intoxicated cases. One can potentially rebut the presumption of intoxication if one does exceedingly well on standardized field sobriety testing, exhibits steady balance and clear speech, and is not observed driving in a reckless, careless or imprudent manner. It has been my experience that the more ones’ blood alcohol content exceeds the "standard" or "legal limit", the less inclined the Courts will be to accept this argument.

Breath testing machines in the State of Missouri typically utilize infrared light to measure the methyl compound group in breath. Law enforcement argues the only methyl compound the machine measures is ethanol or consumed alcohol. A common attack on breath testing devices is their inability to differentiate between ethanol and other similar substances. This is because these other substances absorb infrared light almost identically to ethanol. For instance, many painters and other types of construction workers are routinely exposed to toluene, which absorbs infrared light identically to ethanol. Acetone is another methyl compound that absorbs infrared light identically to ethanol. A person who suffers from diabetes is at a huge risk in this circumstance. If a diabetic person’s blood sugar levels drop to a certain point, they can go into a state of diabetic ketoacidosis which causes the production of acetone on the breath. If that person hadn’t eaten recently, acetone levels can very well increase acetone levels beyond normal measures. To make matters worse, if blood sugar levels drop to this point the person may very well exhibit symptoms that could be confused with indicia of intoxication by alcohol (slurred speech, impaired motor control, affected gait, mental confusion, fumbling and lack of dexterity, ect.). The interferant detector on these machines are allegedly designed to address these problems but many police officers assigned to maintain these machines do not test this mechanism as a part of routine maintenance.

There are other problems with breath testing machines. If a driver has engaged in physical activity causing an increase in perspiration and respiration his breath temperature will be elevated. Higher breath temperature can cause a dramatic increase in blood alcohol readings. Another potential problem is the machine’s inability to detect the presence of mouth alcohol. The idea behind the breath testing machines is that they measure blood alcohol content from the deep alveolar lung air which is a truer indicator of an accurate reading than mouth alcohol. These machines utilize software called a slope detector which is supposed to detect the presence of mouth alcohol and render an invalid sample. However, many experts question whether the slope detector works properly and is partly the reason State law requires the officer administrating the test observe the subject or 15 minutes prior to giving the test to ensure any mouth alcohol has evaporated. Typically mouth alcohol will dissipate within this time period unless the subject has false teeth with dental adhesives that may trap the mouth alcohol for a far longer period of time, potentially rendering a false positive for alcohol.

The Prosecuting Attorney, in a trial for driving while intoxicated, must show the defendant was intoxicated while operating a motor vehicle. This is sometimes difficult when there has been a single car accident in a rural area. Often law enforcement arrives to the scene of these accidents long after the event and there are no independent witnesses who can put the defendant behind the wheel at the time. It may become even more difficult if there is a quantity of alcohol at the scene and it is unclear if the driver consumed intoxicants before or after the accident when operation had ceased. "Operation" is defined as physically driving or being in actual physical control of the vehicle. Actual physical control has been construed by Missouri Courts as existing or present bodily restraint directing influence, domination or regulation of the automobile. If a car cannot be restrained nor have its movements regulated, even if it is running, it can be argued the Prosecutor cannot prove operation. This may be true if the car is stuck in mud or high centered or otherwise incapable of motion. However, Missouri Courts have found a client can be in actual physical control of an automobile that is running even if the defendant is asleep in the driver’s seat in that they would be capable, under this scenario, to potentially regulate the movements of the vehicle.

DWI/DUI police contact:

As in all other instances where an individual is charged with a criminal offense, your Constitutional rights come into play when you are charged with driving while intoxicated. Police officers are not permitted to randomly pull drivers over unless there is some legitimate reason. The only exception to this are properly sanctioned DWI checkpoints that have been approved by the United States Supreme Court. When a police officer stops a driver, this is deemed to be a seizure as contemplated by the Fourth Amendment to the United States Constitution. If this seizure is not warranted, anything emanating from the unlawful detention may be subject to suppression in a court of law. In other words, if the police officer cannot lawfully justify his initial stop of the vehicle and a proper Motion to Suppress has been filed with the Court, the Court can exclude from evidence the Officer’s observations of the defendant, including their performance on standardized field sobriety testing, and the results of any chemical testing of one’s breath or blood to determine blood alcohol content. Consequently, an officer’s assertion that the defendant emitted an odor of alcohol or was unable to maintain his balance or could not speak without slurring his words would not be admissible at trial. The same would be true if the officer indicated the defendant had failed standardized field sobriety tests or took a breath test resulting in a blood alcohol concentration over the legal limit of .08. Without this evidence, the Prosecuting Attorney could not proceed forward and would have no option but to dismiss the charges.