There have been numerous recent updates in DUI law in Missouri and Kansas. Here are the most significant:
JULIA ERSKINE, Petitioner/Respondent, vs. DIRECTOR OF REVENUE, STATE OF MISSOURI, Respondent/Appellant
Missouri Court of Appeals, Southern District – SD32799 – the Court has held that certified records are admissible without testimony to authenticate them in court and that the records do not fall within a hearsay exception. Thus, properly certified driving records do not require testimony in order to be admissible.
Jerry Allan Ridge, Jr. vs. Director of Revenue Missouri Court of Appeals, Western District – WD75986 – the Court here held that there is a difference between a suspect not wanting to undergo BAC testing and unequivocally refusing BAC testing. Here, the suspect was asked for a blood sample when he failed field sobriety tests and admitted to smoking marijuana prior to driving. The officer read the suspect his implied consent advisories and the suspect agreed to blood testing. About five minutes later, the officer asked the suspect if he was sure he wanted to do the test, because he did not want to get the hospital and have the driver change his mind. The suspect then told the officer he did not want to do the test. The court held that not wanting to do the test and refusing are two different thing, and that the circuit court did not err when it reinstated the suspect’s license.
JEFFREY BROYLES, Appellant, vs. DIRECTOR OF REVENUE, STATE OF MISSOURI, Respondent, Missouri Court of Appeals, Southern District – SD32783 – reasonable grounds to arrest a suspect and request the suspect submit to testing may occur after the initial traffic stop. “When an officer observes an unusual or illegal operation of a motor vehicle and observes indicia of intoxication upon coming into contact with the motorist, then probable cause exists.” Other evidence supporting probable cause included cursing, using racial epithets, and spitting in police station.
Kansas v. Stevenson, a decision handed down in March 2014 by the Kansas Supreme Court held that police cannot search a vehicle merely because it smells like spilled alcohol. The Court reviewed the December 19, 2008 traffic stop of Robert Stevenson, a man who had been pulled over allegedly because he signaled 30 feet before he made a turn at the intersection instead of the legally required 100-foot distance – and as many of my clients know, the failure to signal at exactly the 100 foot distance before making a turn, AND failing to keep the blinker on while making the turn – is a common pretext for traffic stops in Kansas. After performing field sobriety tests, officers determined Stevenson was sober, but they weren’t satisfied to allow Stevenson to continue on his way and so claimed that the scent of alcohol in the vehicle justified probable cause for a vehicle search. The smell was coming from a leaking bottle of wine behind the front seat. The search also turned up two small pipes with methamphetamine residue. The Kansas Supreme Court ultimately held that the smell of alcohol alone cannot justify a vehicle search.
Federal (10th Circuit):
In an unbelievable holding, US v. Westhoven, the 10th Circuit Court of Appeals (note: Kansas is one of the States within the 10th Circuit) held that border patrol had reasonable suspicion to pull over a driver with good posture, whose hands were at “ten and two” on the steering wheel, who had bad acne, and who acted nervous when getting pulled over. Note that this driver had not been observed committing a single traffic violation. When officers followed the vehicle and ran the plate, it came back belonging to a man in Tucson; the officers were following this vehicle, driven by a woman, 40 miles north of the border in New Mexico. The officers stated that there were no warrants associated with the vehicle and that it had not been reported stolen, but that the woman’s acne was a sign that the woman might be a meth addict. “Driving stiffly, having tinted windows, slowing down when seeing law enforcement, and driving in an out-of-the-way area may be innocent conduct by themselves,” Judge Scott M. Matheson, Jr wrote for the appellate panel. Officers confirmed the woman was a citizen but continued to detain her to conduct a dog sniff for drugs, and a small amount of marijuana was found. Defendant attempted to suppress the marijuana as evidence due to the illegality of the search, but the Court disagreed. “[W]hen taken together along with driving a vehicle with out-of-state plates in a mountainous smuggling corridor 40-45 miles away from the border, we conclude Agent Semmerling had reasonable suspicion Ms. Westhoven was involved in smuggling activity.”