The Case of the Unreliable Officer

Discussing: State of Missouri v. Leslie Christy, WD82831

Opinion filed by the Missouri Court of Appeals, Western District, on February 18, 2020.

Imagine you are driving a friend at 12:45am. You didn’t notice that you were doing 15 MPH over the speed limit, and drive right past a cop. The cop pulls you over. Claiming to smell alcohol from your vehicle and that your eyes are bloodshot and glassy, he asks you to step out of the vehicle to perform field sobriety tests.

The first field sobriety test he gives you is the Horizontal Gaze and Nystagmus (HGN) Test. This is when an officer asks you to follow the movement of his finger with your eyes. Next, is the Walk-And-Turn Test. This is when an officer asks you to take steps forward, turn around, and take steps back. Then, is the One-Leg Stand. This is when an officer asks you to simply stand on one leg. You didn’t do too well on the field sobriety tests, or at least that’s what the officer thinks. Finally, a chemical test is administered, determining your Blood Alcohol Content (BAC) is 0.07%…which is under the legal limit of 0.08%. So how in the hell did you get charged with Driving While Intoxicated (DWI)?[1]

Now you’re in a jam, so you do the smart thing and hire a lawyer. Your lawyer files a motion to dismiss, because the Missouri law that controls the admissibility of breathalyzer evidence says that if a breathalyzer reads less than 0.08% BAC, the criminal charge SHALL be dismissed (and in the law, the word “shall” means it has to happen)  unless there is evidence that the test was unreliable, or there is substantial evidence of intoxication from physical observations of witnesses or admissions from the defendant, among other things.[2]

At the hearing, your lawyer questions the hell out of the officer. The lawyer plays the dash-cam footage in open court showing your performance of the field sobriety tests, and that your performance was not so bad, and in fact, your age, weight, and other physical conditions played a role in your less than perfect performance. Then, the lawyer got the officer to admit that there are plenty of reasons someone might have glassy or bloodshot eyes besides intoxication, points out all the inconsistencies in the paperwork the officer filled out, and all the factors you showed that indicate you were not intoxicated (i.e. speech was not slurred, not confused, not incoherent, was cooperative, followed instructions, etc.). Finally, the lawyer questioned the officer on the stand about his reliability and credibility as a witness, and the officer admitted that his testimony was found to be not credible in two other cases in the same county!

After hearing all the evidence, the judge took the matter under advisement. Noting that the State did not present evidence that the test was unreliable, and the evidence that was presented was heavily contested by your lawyer, the Judge ruled in your favor dismissing the charges because the State did not present “substantial evidence” of your intoxicated condition while operating a motor vehicle.

Amazing, right? Time to celebrate! Actually, not quite yet because then the State appeals the dismissal! Good lord, what now?

The State argued that they had presented “substantial evidence” of intoxication despite the fact your BAC was 0.07%. The Appeals Court shut that argument down stating “substantial evidence” really means “competent evidence”. Competent evidence is relevant and admissible evidence that if believed, demonstrates that the fact at issue. In this case, the fact at issue is whether you were driving while intoxicated.

Given all the reasons to not believe the officer’s testimony, the appeals court decided that the trial court was correct in dismissing your charges because trial judges, as the fact finder in this type of proceeding (similar to a jury in a full-on trial), have a lot of discretion. At the end of the day, it was the State’s burden of proof to show substantial evidence of operating a motor vehicle while intoxicated, and well, they didn’t carry their burden.

Long story short, to be charged with DWI if your breathalyzer or other chemical test results show you had less than 0.08% BAC, the State must show there is substantial evidence of the driver’s intoxication (or one of the other exceptions) or the case can be dismissed.

Chalk one up for the good guys!

[1]  See RSMo 577.010  for sentencing restrictions and offense classifications.

[2] See RSMo 577.037 for the full list of exceptions.


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