According to a recent news article, law enforcement authorities in Missouri say potentially thousands of breathalyzer tests might be thrown out due to a dispute over the word “and.” The news comes as several defendants have had the results of the breath tests tossed by judges and many criminal defense experts believe the trend will likely continue for those with creative attorneys.
The issue concerns wording in Missouri Department of Health and Senior Services guidelines for how officers should properly maintain breath analysis equipment. The regulations say that the breath test machines must be maintained and periodically tested to ensure their accuracy. The rules currently require police to test the machine at one of three BAC levels: 0.10, 0.08 or 0.04 percent.
The problem is that between November 30, 2012 and the end of this past January the regulations said something slightly different. During that time period, the rules said that officers should test BAC levels at 0.10, 0.08 and 0.04 percent. The inclusion of the “and” is crucial, as it implies that the equipment must be shown to properly detect BAC at all three levels, not just one.
Several DWI defense lawyers recently noticed this mistake and have successfully argued the matter in court. They claim that police failed to properly test and maintain the equipment according to state regulations and, as such, the results of the test must be thrown out as potentially unreliable.
Just this past week two suspected drunk drivers from the St. Louis area had their cases tossed because police officers were unable to prove that they had tested the breath machines at all three BAC levels. In both instances, the drivers’ licenses of the suspects were restored and all suspensions removed.
News of the success has traveled far and wide and reports indicate that another eight cases have used a similar argument in contesting a defendant’s guilt. Experts say that if judges continue to rule favorably, that it could cause serious problems for prosecutors seeking to convict drunk drivers. Without the breath test evidence, they may not be able to prove that drivers actually were intoxicated. The same issue will make things hard for the Department of Revenue, which uses the results to justify revoking a drunk driver’s license.
Some prosecutors have said that defendants should hold off on getting excited given the other evidence of intoxication that officers may have collected. Additionally, prosecutors say that the wording issue was likely a simple clerical error and that they would be fighting back more vigorously against such technical arguments. Whether the issue of the “and” results in thousands of suspected drunk drivers going free remains to be seen, but you can bet it will be watched carefully by many in Missouri.
Source: “Drunken driving suspects may get a break from fine print in Missouri regulations,” by Jesse Bogan, published at STLToday.com.
