Posted by Sansone / Lauber Trial Lawyers on September 4, 2012SHARE IT
This case involved an appeal by the Department of Revenue of a judgment to set aside the revocation of Alicia Lynn McKay’s driver’s license. The Department of Revenue claims that McKay’s refusal to submit to a breath test negates her voluntary decision to submit to a blood test and constitutes a refusal as found in Missouri law. The Missouri Court of Appeals for the Western District disagreed, supporting the lower court’s decision to overturn McKay’s license revocation.
The officer in this case, Ralph Wheeler, pulled McKay over for speeding back in February of last year. McKay failed the field sobriety test and, based on what he observed, Officer Wheeler took McKay into custody on suspicion of DWI. McKay was taken to the police station and read her rights and asked to submit to a breath test, a request she refused. Wheeler informed McKay she would be taken to a hospital for a blood test, at which point McKay said she wanted to speak to an attorney and she spent the next 20 minutes unsuccessfully attempting to get in touch with her lawyer. McKay was again asked to submit to a breath test and she refused. McKay was then driven to the hospital at which point she agreed to a blood test.
McKay later received notice from the Department of Revenue that she would have her licensed revoked based on her refusal to submit to a breath test and for having excessive blood alcohol content as determined by the blood test. McKay objected, saying that she had not refused testing of her BAC. The lower court agreed and found that McKay giving the blood sample was sufficient to avoid being found to have refused testing.
In Missouri, thanks to the state’s Implied Consent Law, drivers on public roads are deemed to have consented to a chemical test of their breath, blood, saliva or urine for the purpose of determining the alcohol content of their blood. Drivers are allowed to revoke their consent and refuse to submit to such testing, but if that happens then the person’s driving privileges are subject to revocation for one year.
The Department of Revenue here claims that the officer’s ability to eventually get McKay to agree to the blood test has no bearing on whether her license can be revoked for her earlier refusal to submit to breath testing. They say that the two events are separate and that even if her blood alcohol level was eventually able to be determined thanks to subsequent testing, her initial refusal was enough to justify the revocation of her license. The Court of Appeals disagreed.
The Court says that the fact a voluntary test of McKay’s blood was conducted, allowing proper chemical testing, means that McKay cannot be said to have refused such testing. The Court held that where the driver’s BAC is determined through consensual, warrantless testing, even if the driver first refuses the test, the purpose of the Missouri law has been fulfilled. As such, the Department of Revenue cannot have it both ways: on the one hand getting a chemical test of a person’s blood without a warrant, and on the other, accusing the person of refusing to submit to just such a test.
If you find yourself in need of a Missouri DWI defense lawyer capable of aggressively protecting your interests, contact our St. Louis DWI law firm today at (314) 863-0500.
To read the full opinion, click here.