Missouri Supreme Court to review DWI warrants

Tuesday, March 9, 2004

JEFFERSON CITY, Mo. -- The Missouri Supreme Court is slated to hear a Cape Girardeau County case that could determine if police may use a search warrant to involuntarily obtain a blood sample from a drunken driving suspect who has refused to consent to chemical testing.

Under Missouri's "implied consent" law, motorists are deemed to have consented to providing breath, blood, saliva or urine to determine if they are under the influence of alcohol or drugs when arrested for driving while intoxicated.

Although motorists may still decline to submit to chemical testing, they face an automatic one-year revocation of driving privileges for failure to do so. The law says that if the driver refuses to submit to such a test "then none shall be given."

In written arguments filed with the Supreme Court, Cape Girardeau County Prosecuting Attorney Morley Swingle says the state legislature intended for that language to restrict only warrantless searches, not those authorized by a court-issued warrant.

"One does not rid the highways of drunk drivers by making it impossible to get a sample of their blood by search warrant," Swingle wrote. "The interpretation suggested by the defendant turns the intent of the legislature on its head."

Language of the law

However, Stephen Wilson of Cape Girardeau, the attorney for the Jackson woman testing the limits of the law, argues that the plain language of the statute is absolute and includes no exemptions allowing court-ordered searches.

"This Court should reject the State's argument to read words into (the law) that are not there," Wilson wrote. "If the legislature wanted there to be an exception it would have included the exception in the statute. It did not."

The Supreme Court is scheduled to hear the case April 7, though Swingle intends to request a delay as he plans to be out of the state.

On Aug. 12, 2002, Carol Sue Smith of Jackson was arrested on a DWI charge. After she refused to submit to a Breathalyzer test, Cape Girardeau County sheriff's deputy Mark Winchester obtained and executed a search warrant authorizing the collection of a blood sample.

On March 3, 2003, Associate Circuit Judge Michael Bullerdieck barred the test results from being admitted as evidence at Smith's trial on the misdemeanor DWI count.

Swingle appealed to the Missouri Court of Appeals Eastern District in St. Louis, which on July 22 overturned Bullerdieck's ruling. Smith in turn requested Supreme Court review, asking for reinstatement of Bullerdieck's finding.

Smith's trial remains on hold pending action by the high court.

Swingle argues case law supports the practice of using search warrants to obtain physical evidence in drunken driving cases.

"No Missouri case has ever ruled that a search warrant cannot be issued for the drawing of blood for an alcohol sample," Swingle wrote. "The blood in the veins of a drunk driver not only constitutes evidence of a crime, but the State clearly has a strong interest in admitting that evidence at trial."

Wilson counters that the Missouri high court has never addressed the specific issue of whether the implied consent law prohibits warrants in DWI cases. In other states with laws similar to Missouri's, courts have generally barred warrants to obtain physical evidence when a motorist has refused to voluntary provide it, Wilson argues.

The case is State of Missouri v. Carol Sue Smith.

mpowers@semissourian.com

(573) 635-4608

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