Legality of DWI Questionable

[ellemouse]

What is the name of your state (only U.S. law)? Missouri

My husband was given a DWI in Missouri by an officer who NEVER observed my husband driving the vehicle. When given a breathalyzer (in a private business parking lot) he blew .08, and admitted to having operated the vehicle earlier in the day. When the officer showed up and questioned my husband, he was out of the vehicle, IGNITION OFF--he had the keys in his pocket.

We are going through some serious railroading, long story short, and it's been bound-over to Circuit level (he waived prelim--3rd DWI was 21 yrs ago.) WHAT CAN and SHOULD WE DO??

Please help!!

 

[latigo]

What is the name of your state (only U.S. law)? Missouri

My husband was given a DWI in Missouri by an officer who NEVER observed my husband driving the vehicle. When given a breathalyzer (in a private business parking lot) he blew .08, and admitted to having operated the vehicle earlier in the day. When the officer showed up and questioned my husband, he was out of the vehicle, IGNITION OFF--he had the keys in his pocket.

We are going through some serious railroading, long story short, and it's been bound-over to Circuit level (he waived prelim--3rd DWI was 21 yrs ago.) WHAT CAN and SHOULD WE DO??

Please help!!

Of course you can testify under penalty of perjury that you personally observed and overheard all of the above!

Or perhaps your hubby's vehicle drove itself into the lot avoiding foot traffic, shopping carts and handicapped parking zones?

 

[dave33]

What is the name of your state (only U.S. law)? Missouri

My husband was given a DWI in Missouri by an officer who NEVER observed my husband driving the vehicle. When given a breathalyzer (in a private business parking lot) he blew .08, and admitted to having operated the vehicle earlier in the day. When the officer showed up and questioned my husband, he was out of the vehicle, IGNITION OFF--he had the keys in his pocket.

We are going through some serious railroading, long story short, and it's been bound-over to Circuit level (he waived prelim--3rd DWI was 21 yrs ago.) WHAT CAN and SHOULD WE DO??

Please help!!

The only thing you can do is work your way through the legal process.

Hire an attorney.

 

[ellemouse]

Latigo: Unless I'm vacuous, your reply was uncouth. Thanks so much....

dave33: Sound advice, which I appreciate. It is because we are (at this time) without funds sufficient to procure legal representation that I registered and posted my legal question in this forum. Perhaps trying to postpone until our tax refund arrival is now the plan. Thanks again.

 

[Zigner]

Latigo: Unless I'm vacuous, your reply was uncouth. Thanks so much....

dave33: Sound advice, which I appreciate. It is because we are (at this time) without funds sufficient to procure legal representation that I registered and posted my legal question in this forum. Perhaps trying to postpone until our tax refund arrival is now the plan. Thanks again.

After this is over you can explain to your husband that if he stops drinking, you'll have more money.

 

[tranquility]

Case law in many states holds that a person under the influence in possession of keys near the vehicle was "in control" of the vehicle and subject to DUI laws. You will need an attorney to research if that is the case in your state. If not, and your husband did not admit anything and there is no other evidence (eyewitness, video tape, warm hood on the vehicle, etc.), you might have a case.

 

[ellemouse]

Thank you. I DID do some research of case precedence and it appears that since the officer himself (nor any other official) did not observe Defendant driving and therefor could not establish that Defendant actually OPERATED the vehicle while intoxicated. He can establish Defendant operated the vehicle. He can establish that when given the breathalyzer Defendant was legally intoxicated. The missing link is that there is no evidence to say that Defendant actually operated the vehicle in an intoxicated manner.....State of Mo. vs. Davis....is that right? Supreme Court ruling**************

 

[HighwayMan]

My husband was given a DWI in Missouri by an officer who NEVER observed my husband driving the vehicle.

That's not always necessary.

When given a breathalyzer (in a private business parking lot)

Where the test was administered is irrelevant. Since this was out in the field I would assume you mean a portable breath testing device. I will further assume that after he was arrested he was brought to a police facility where he was given a more formal breath test.

Even as far as operation of the vehicle is concerned, a private parking lot is considered a public roadway (terminology varies by state) in all states that I am aware of - as long as the lot is open to public motor vehicle traffic.

You were not there and do not know what happened exactly. If you are counting on your husband's story as being accurate that may be a mistake since he was apparently intoxicated at the time and his judgment and memory are certainly suspect.

This is no simple matter. There are no ifs, and, or buts about it - your husband needs an attorney.

 

[HighwayMan]

Thank you. I DID do some research of case precedence and it appears that since the officer himself (nor any other official) did not observe Defendant driving...

I find it hard to believe that case law states that only an officer or other public official can legally observe an alleged intoxicated individual operating a motor vehicle.

Unless you have a legal background I wouldn't be so quick to be reading legal cases and drawing conclusions from them, especially as they may relate to your husband's case.

 

[ellemouse]

Not a lot of legal background--9 years as paralegal; however, it doesn't help much (obviously.) I'm not trying to say he's NOT GUILTY; what I am saying is if anything regarding his case is not LEGAL as what's set out in the law or case precedence (God knows the Court system is always right--at someone's expense), then that's what we should focus on. I'm not trying to find a way to find him innocent of testing positive on a breathalyzer, I'm trying to make sure they're following the law and HIS rights aren't violated, either. Sometimes, that's all one can do, right?

 

[tranquility]

At least the state will have to prove more than the OP(husband) was in control of the vehicle as of the law change in 1996 regarding the DUI statute removing the "in control" portion.

COX v. DIRECTOR OF REVENUE 98 S.W.3d 548 (2003)
Supreme Court of Missouri, En Banc.
March 4, 2003.

Will require evidence the person as at the wheel with the engine running at some point while intoxicated. Sleeping in a stopped car not running was not a violation, but coasting down a hill with the engine off was.

I have no idea where the theory was the officer had to see it. All he needs is probable cause to think it happened. (Which may need to include the issue of a misdemeanor arrest not committed in the presence of the officer.) But, only an attorney could present such a technical defense.

 

[Just Blue]

At least the state will have to prove more than the OP(husband) was in control of the vehicle as of the law change in 1996 regarding the DUI statute removing the "in control" portion.

COX v. DIRECTOR OF REVENUE 98 S.W.3d 548 (2003)
Supreme Court of Missouri, En Banc.
March 4, 2003.

Will require evidence the person as at the wheel with the engine running at some point while intoxicated. Sleeping in a stopped car not running was not a violation, but coasting down a hill with the engine off was.

I have no idea where the theory was the officer had to see it. All he needs is probable cause to think it happened. (Which may need to include the issue of a misdemeanor arrest not committed in the presence of the officer.) But, only an attorney could present such a technical defense.

he blew .08, and admitted to having operated the vehicle earlier in the day. When the officer showed up and questioned my husband, he was out of the vehicle, IGNITION OFF--he had the keys in his pocket.

,,,,,,,,,,,,,

 

[ellemouse]

STATE of Missouri, Respondent,
v.
Darrell WILSON, Appellant.

No. WD 69083.
Missouri Court of Appeals, Western District.

November 4, 2008.
81*81 Jeffrey Scott Eastman, Gladstone, MO, for appellant.

Kristen Lea Ellis, Liberty, MO, for respondent.

RONALD R. HOLLIGER, Judge.

Darrell Wilson appeals his conviction for the Class B misdemeanor of driving while intoxicated in violation of section 577.010, RSMo 2000. As one of his two points on appeal he contends that the State failed to prove that he drove the vehicle while in an intoxicated condition. Because the State failed to produce any evidence as to Wilson's condition at the time that he drove or any evidence from which it could be even inferred, we are compelled by law to reverse his conviction.

On December 17, 2006, Wilson was driving a vehicle involved in a one car accident at I-435 and Missouri 210 Highway. He and his passenger were injured and taken to North Kansas City Hospital. Trooper Erick Kolb was dispatched to the scene of the accident but arrived after Wilson and the passenger were taken away. Trooper Kolb later went to the hospital and interviewed both occupants. Although Wilson initially refused an alcohol test, he eventually agreed to a blood test. The highway patrol lab technician testified over objection[1] that Wilson's blood alcohol concentration was .150.

The charge against Wilson required proof that (1) he operated the vehicle and (2) was intoxicated while doing so. 82*82 State v. Davis, 217 S.W.3d 358, 360 (Mo. App. W.D.2007). "Proof of intoxication at the time of arrest, when remote from the operation of the vehicle, is insufficient in itself to prove intoxication at the time the person was driving." Id. (internal quotation marks omitted). "[T]ime is an element of importance" that the state must prove to sustain its burden to show that a driver drove while intoxicated. State v. Ollison, 236 S.W.3d 66, 68 (Mo.App. W.D. 2007), quoting State v. Dodson, 496 S.W.2d 272, 274 (Mo.App.1973).

 

[Zigner]

In your 9 years as a paralegal, were you introduced to the concept that spoken statements (ie: admissions) are evidence?

 

[tranquility]

In your 9 years as a paralegal, were you introduced to the concept that spoken statements (ie: admissions) are evidence?

As would another's testimony. As would a warm engine. As would a video from the parking lot.

The state does have to prove he was driving as an element of the offense. They don't have to have an officer see him driving.

(By the way, I'd think a person who worked "9 years as paralegal" would understand how to read a case. You read it as saying the officer needs to see the person driving. Actually the court guided on ways the State could have proven it up in their facts in its discussion):

 A review of the evidence surprisingly shows only that Wilson drove a vehicle, was involved in an accident, and was intoxicated at the hospital sometime during a 24-hour period on December 17, 2006.   There is no testimony as to when the accident occurred.   There is no testimony as to when the trooper arrived at the scene.   There is no testimony as to when the trooper arrived at the hospital, what time he observed the defendant who was undergoing treatment, or what time the blood sample was drawn.   The State elicited none of this information from the trooper.   The State did not call the paramedics who took Wilson to the hospital to establish any time parameters or his condition at the scene.   The State did not call any hospital workers either.

You are not going to help your husband. You need a real attorney to have a chance.