15 WAYS TO CHALLENGE A MISSOURI DWI
1) FIELD SOBRIETY TEST ADMINISTERED BY THE OFFICER NOT RELIABLE EVIDENCE OF INTOXICATION – a healthy, sober individual who takes the one-leg stand test will only pass the test 65% of the time, and walk-and-turn test only 68% of the time. Persons with injuries, medical conditions, are 50 pounds or greater overweight, and 65 years or older cannot be validly judged by any of the standardized field sobriety tests. And, there are no studies that validate the reliability of the alphabet, counting, finger to nose, or other field sobriety tests. The Missouri DWI prosecutor must prove the blood or breath alcohol at the time of driving. Recent consumption of alcohol just prior to driving will cause the test results to be higher than what the true level was when the person was operating the automobile.
2) ILLEGAL STOP – a Missouri DWI Enforcement officer cannot stop a car without having a reasonable and articulate basis to believe that a law has been violated or he can articulate unusual operation of the motor vehicle. Therefore, if the St. Louis, Missouri DWI enforcement officer stops the car just because he saw the driver walk out of a bar and get into the car, or he received an anonymous tip about the driver, the Missouri DWI charge may be dismissed based on violation of the driver’s rights.
3) BLOOD TEST INACCURATE – The admissibility of blood testing in a Missouri DWI case depends on the procedures used in the taking of the sample. Oftentimes, medical centers that take these samples fail to follow proper protocol. Even if they say the prep swab is non-alcoholic, there is usually some trace of alcohol in the swab, which subjects these samples to a Motion to Exclude. Hospital tests have been shown to overestimate a blood sample by as much as 25% in healthy, uninjured individuals, and are not statistically reliable in severely injured persons. When hospital staff use lactated ringers during the treatment of a patient, the hospital blood serum results will report falsely elevated readings.
4) VIDEOS OR DISPATCH TAPES – All Missouri State Troopers, and many other Missouri DWI enforcement officers have video cameras in their patrol vehicles. These videos, along with videos from testing rooms, booking rooms, and other sources can be the best defense to some Missouri DWI charges. These videos can show that the field sobriety tests administered to you are not as bad as the Missouri DWI enforcement officer interpreted them. We have seen tapes that showed the driver’s speech was not muttered, slurred, or incoherent, their balance was not swaying or stumbling, and their attitude was not combative or uncooperative. These are areas where a qualified Missouri DWI attorney can show that the officer has a bias toward the driver and is not accurately testifying about the driver’s clues of intoxication. Most vehicle stops are audibly recorded on dispatch tapes. If a proper motion to preserve has been filed, a failure to preserve such tapes upon request can cause all evidence which could have been recorded to be suppressed.
5) BREATH TESTING IS INACCURATE – one breath test does not tell anyone whether a driver is guilty of violating Missouri DWI law. The alcohol level in a person’s blood stream changes rapidly over relatively short periods of time. Therefore, a person who consumes an alcoholic drink and then, as soon as the breath alcohol dissipates, immediately takes a breath test will have a lower blood alcohol content (BAC) than someone who consumes the same beer and takes the test a half hour or full hour later. Missouri DWI Law requires that the person who is charged with a Missouri DWI be intoxicated at the time of vehicle operation. But, breath testing is not administered at the scene. It’s administered at the station, after time has passed. Therefore, if a driver’s breath test is close to the .08 legal limit, the driver may have a defense to a Missouri DWI charge that the breath test is inaccurate.
6) THE OFFICER’S PRIOR RECORD AND STATEMENTS – in a proper case, a police officer’s previous disciplinary record can be used to challenge the officer’s credibility; especially if the officer has been disciplined for lying, misrepresentation, or violating the rights of a driver. Furthermore, if the officer has testified previously in a Missouri DWI case about the reliability of tests, or how to administer them, that prior testimony can be used to challenge the Officer’s skills at administering field sobriety tests if he answers differently from trial to trial. Also, if the Missouri DWI enforcement officer misled the driver about the consequences of refusing to submit to tests under Missouri DWI law then the results can be thrown out at the administrative hearing and at the criminal trial.
7) FAILURE TO CONDUCT OBSERVATION PERIOD – Missouri DWI law requires that a driver be observed continuously for a set time period prior to a breath test in order for the results to be considered admissible. Some Missouri DWI Enforcement officers may try to manipulate this time period by doing other things during the time period, and leaving the driver alone, instead of properly monitoring his actions. If the Missouri DWI enforcement officer in the Missouri DWI case did not actually observe the driver during the required time period the test results may be thrown out of court.
8) BREATH TEST OPERATOR UNLICENSED – A person who operates the Missouri DWI breath testing machine must possess a valid operator’s license. There are cases where the operator’s license had expired and the case has been dismissed or won at trial.
9) INDEPENDENT WITNESSES – Missouri DWI enforcement officers do not interview independent witnesses in a St. Louis, Missouri DWI case. A proper investigation can identify these witnesses and they can be found to testify about the defendant’s signs of intoxication. These witness, oftentimes, do not have the same recollection that the officer does. These witnesses include people such as bartenders, hospital personnel, wait staff, other customers at eating or drinking establishments, and others.
10) MEDICAL AND HEALTH PROBLEMS – Medical problems with nearly any part of the body can affect the results of Missouri DWI field sobriety tests and even breath tests. If these conditions do interfere with the tests, then the validity of the tests are subject to challenge, and may be a reason for dismissal or victory at trial.
11) FAILURE TO MIRANDIZE OR READ THE IMPLIED CONSENT WARNING – Missouri DWI prosecutors may not use the statements of a defendant in custody for violation of Missouri DWI law when the police have failed to properly warn the driver in accordance with the Miranda Warnings. Furthermore, the Missouri DWI enforcement officer must read the driver Missouri’s Implied Consent law before the driver submits to the breath test.
12) BAD WEATHER – In order to explain poor driving or poor balance, weather reports establishing high winds, low visibility, and other conditions, may be used in any Missouri DWI case.
13) FAILURE TO RECORD CERTIFICATION TESTS – the value of the simulator solution used to test Missouri DWI breath machines must be recorded or will result in the breath test results being inadmissible in court against the driver.
14) INTERFERING SUBSTANCES – false Missouri DWI breath tests may be caused by many things, such as asthma spray, cough drops, paints, or fingernail polish, which contain forms of alcohol.
15) FAILURE TO PROVIDE A SPEEDY TRIAL- the State must provide a trial within specified time periods. If they don’t, the case must be dismissed.