Posted by Sansone / Lauber Trial Lawyers on March 10, 2014SHARE IT
When a person in the State of Missouri gets pulled over for DWI they are typically asked to take a breath test after their arrest. Most people don’t realize that although the breath analysis machines are maintained by the police department they are regulated by the Department of Health and Senior Services. The Department of Health and Senior Services has a set of very strict written rules and regulations on how the breath testing machines are maintained. The rules and regulations are maintained online for anyone to read at the Department of Health and Senior Services. One of the main reasons for the strict guidelines is to ensure that all of the breath testing machines throughout the state of Missouri are all accurate and uniform from jurisdiction to jurisdiction. According to the regulations the machines must be tested periodically to ensure that the machines are working and working properly. During this test of the machines they must register at one of three blood alcohol levels: 0.10%, 0.08% OR 0.04%. According to the regulations that were in effect from November 30, 2012 to January 29, 2104 the regulations stated that the equipment must be tested to the level of 0.10%, 0.08% AND 0.04%. Recently, criminal defense attorneys have been making an issue out of the small word “and” that was put in the regulations. The word “and” implies that the machines must be tested and calibrated at all three levels. Many attorneys have recently brought this to the attention of the courts and have finally had a Judge agree with them. Associate Circuit Judge Thornhill in St. Charles County ruled in favor of drivers stating that the police were not maintaining the breath equipment up to the standards provided in the Department of Health and Senior Services.
This is an important decision as it gives DWI offenders and lawyers another possible defense against DWI cases. If you have a case in which you blew over the legal limit of 0.08 % during this time you will have the ability to fight the case and potentially avoid losing your license. It is important to understand that in any DWI case there is the administrative side of the case that is a civil proceeding that deals with your license and the criminal side of the case. These arguments were raised in the civil context of a Department of Revenue case. A person must understand that even if the BAC results are thrown out of court the Prosecuting Attorney can use other evidence to prove that a Defendant is guilty of DWI. It is important for your attorney to understand this and build the best possible defense by investigating your case and using all possible defenses to win your case. The decision is likely to cause quite a stir throughout the State of Missouri. It is not clear if other Judges throughout the State will follow the lead by Judge Thornhill but it is important that if you have a DWI case that the attorney representing you raises this issue with the prosecuting attorney and the Judge. Even if this loophole does not get your case dismissed it can still have a major impact in how the State of Missouri handles your case and in particular what type of plea bargain you get.
If you have been arrested for DWI and would like to sit down and discuss your case free of charge contact Sansone/Lauber today at 314-863-0500 to set up an appointment.
Source: “Drunken driving suspects may get a break from fine print in Missouri regulations,” by Jesse Bogan at www.stltoday.com