DWI case sent back to trial after appeals court ruling

A local judge's ruling was overturned Tuesday by appellate court judges who said a prosecutor was within the law to use a search warrant to obtain a blood sample from a Jackson woman suspected of driving while intoxicated.

The Missouri Eastern District Court of Appeals' decision strengthens a prosecutor's ability to obtain blood evidence in drunken driving cases when a suspect refuses to consent to chemical tests.

"I'm delighted," said Cape Girardeau County Prosecuting Attorney Morley Swingle. "This is what I always thought the law was, and I'm glad the Missouri Eastern District Court of Appeals agrees."

The decision puts the case against Carol Sue Smith back on track for a trial, he said.

Smith's attorney, Steve Wilson, said he was disappointed in the appellate court's ruling.

"I think they have not given much consideration to the issue," he said. "They ignored 13 other states who ruled contrary to them."

Wilson intends to ask for a rehearing with the appeals court, he said. If they refuse, he intends to take the case to the Missouri Supreme Court.

Smith was arrested Aug. 12 by a sheriff's deputy on suspicion of driving while intoxicated. She refused to submit to a blood, breath or urine test. The deputy obtained a search warrant for her blood, and the prosecutor's office later charged her with a class B misdemeanor for driving while intoxicated.

Wilson successfully kept the blood sample out of court in March when he argued the warrant was prohibited by statute 577.041.1, known as the implied consent law. Trial court Judge Michael Bullerdieck agreed and said the language of the refusal section of the law showed the legislature's intent to limit the state's right to seek a search warrant, citing that after refusal to consent to a chemical test, "none shall be given."

For his sole point on appeal, Swingle argued that the statute prohibits chemical testing obtained through a warrant because the authority to do so was authorized by the state constitution. The appellate court agreed with Swingle.

If the appellate court had agreed with Bullerdieck, Missouri prosecutors may have had to stop seeking search warrants for blood in DWI cases if the defendant refused a Breathalyzer test.

The DWI charge stemming from Smith's Aug. 12 arrest is not the only criminal charge she faces. In that incident, she also was 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. She is scheduled for a jury trial Thursday on that case, but Wilson expects to request a continuance, he said.

mwells@semissourian.com

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