DWI appeal puts blood-alcohol test by police on trial

If a local judge's ruling is upheld, Missouri's suspected drunken drivers could be exempt from further blood-alcohol-level tests -- involving blood and urine samples -- by first simply refusing to take a Breathalyzer test.

It's another of several Cape Girardeau County cases in recent years with the potential to shape state law. Others include a recently filed appeal concerning a methamphetamine-related traffic stop and a 2002 appeal to the Missouri Supreme Court that affirmed the constitutionality of the law against abandoning a corpse.

"This will be an important precedent," Prosecuting Attorney Morley Swingle said of the DWI appeal. "If the appellate court finds for Judge Bullerdieck, then prosecutors all over the state may have to stop seeking search warrants for blood tests in DWI cases if the defendant refuses to take a Breathalyzer test."

Police say it's difficult to convict drunken drivers with only the field sobriety test -- standing on one foot, counting backwards and the like -- and no additional blood-alcohol tests.

In the DWI appeal, Carol Sue Smith, 42, of Jackson was arrested Aug. 12 for allegedly driving while intoxicated. Her attorney, Steve Wilson, successfully kept the evidence of Smith's blood sample out of court in March after Circuit Judge Michael Bullerdieck agreed it should have not been drawn in the first place because Smith refused a Breathalyzer.

Bullerdieck's written ruling said it was the Missouri Legislature's intent to limit the state's right to seek a search warrant for such a blood test.

"Otherwise, that portion of 577.041 RsMo, stating that after a refusal no chemical test shall be given, would be totally meaningless," he wrote in his ruling.

Swingle and assistant prosecuting attorney Jack Koester are challenging the ruling in the Missouri Court of Appeals Eastern District, asking the higher court not to give drivers who refuse Breathalyzer tests a loophole that would protect them from further tests conducted after search warrants are issued.

Their appeal hinges on the interpretation of a statute that says if a driver is stopped for suspected DWI "... refuses upon the request of the officer to submit to any test ... then none shall be given ..." Prosecutors also want to convince the higher court that the testing statute refers only to cases where blood is drawn without a warrant, not the seizure of evidence obtained with a valid search warrant. Oral arguments are set for June 11 in St. Louis.

Court documents show that, at the sheriff's department office, former deputy Mark Winchester asked Smith to submit to a Breathalyzer test but she refused. The deputy contacted the prosecutor's office, and a search warrant was issued, allowing a private ambulance paramedic to take a blood sample from Smith.

Court records do not show whether Smith was asked by Winchester to voluntarily submit a blood sample.

The DWI charge stemming from Smith's Aug. 12 arrest is not the only criminal charge she faces. She was also charged with child endangerment for reportedly having one of her children in the car and for not wearing a seat belt.

Less than three months later, Smith was arrested again for allegedly driving while intoxicated, bringing additional child endangerment charges and a traffic charge. But this time, a blood sample was not drawn in connection with the arrest, Swingle said.

"That arrest had different circumstances and different facts," he said, deferring any further comment on the pending case, which awaits a jury trial July 24.

The prosecutors filed their 30-page appeal April 15 on the first DWI charge. It outlines what will make up their oral arguments and cites several previous cases dealing with similar issues.

"I've done some research in other state's cases, and it's gone both ways," Swingle said.

Wilson hasn't filed his written response brief, but his argument is that the statute was clear in its intent.

Warrant unusual

Wilson said the search warrant was unusual in this case because prosecutors tend to seek warrants for blood tests only when police suspect drivers are under the influence of drugs or someone was injured or killed in a crash.

But Sgt. Blaine Adams of the Missouri State Highway Patrol said in his experience that's not true. During his nearly 16 years with the patrol, Adams has made the third highest number of DWI arrests of any current officer in the patrol, now numbering between 800 and 900 arrests.

"My standard practice is, if I arrest a guy for DWI, I request he take a Breathalyzer test, and if he refuses, then I request a blood sample," Adams said. "Of course, most of the ones who refuse the Breathalyzer also refuse to give a blood sample. But I do that so I can show a jury I've done all I can before I go get a search warrant."

Adams is curious about how the case will turn out, but he's confident the appellate court will hand down a reversal of Bullerdieck's ruling.

"I would be very, very surprised if Morley doesn't win," Adams said.

Adams is the zone supervisor for troopers in the Cape Girardeau and Jackson area. He is often in contact with Swingle to discuss how to build stronger DWI cases, he said.

mwells@semissourian.com

335-6611, extension 160