HIGH COURT HEARS ARGUMENTS IN ADVANCE CASE

JEFFERSON CITY -- The Missouri Supreme Court heard oral arguments Tuesday in the case of a Stoddard County man whose driver's license suspension was set aside by a lower court.

At issue is whether the Department of Revenue retains the right to appeal in license suspension cases after it has complied with a trial court's order to return a driver's license and remove the suspension from the driver's record.

The license of Jeffrey David Lacy of Advance was suspended for allegedly driving while intoxicated. In October 1998, however, Stoddard County Associate Circuit Judge Joe Z. Satterfield set aside the suspension on the grounds that Director of Revenue Quentin Wilson failed to establish the foundation for the admission of breath test results.

The director removed the suspension and appealed. The Southern District of the Court of Appeals dismissed the appeal, holding that the director's compliance with the lower court ruling waived the right to appeal.

Representing the director, Evan Buchheim of the Attorney General's Office argued that removal of the suspension did not waive the right to appeal and that the trial judge incorrectly ruled the breath test results inadmissible.

Since the appellate court ruling, the director has stopped removing suspensions in cases it appeals. As a result, the director has been threatened with contempt by several trial court judges for not complying with their orders, Buchheim said. The director has filed 120 appeals in license suspension cases this year.

Lacy's attorney, Dennis Wilson of Dexter, argued that the fact the director unconditionally complied with the court order before appealing rendered the appeal moot. Wilson said Lacy received a notice of appeal 30 days after the director complied with the lower court.

Judge John C. Holstein asked Wilson that if the trial judge had ruled against his client and ordered Lacy to turn over his license and he did so, if he would still be entitled to appeal.

Wilson said if his client complied but stated to the judge his plans to appeal, then his right to do so would remain intact. However, if complied without stating his intention, Wilson said a defendant could be seen as waiving appeal.

"How you comply with an order makes a difference," Wilson said.

Wilson also asked the court to find in favor of his client on the merits of the case. He said the officer who conducted the breath test did not follow the proper regulations in maintaining the Breathalyzer and testing Lacy. If established procedures are not followed, test results are suspect and therefore not admissible, Wilson said.

"A very small error can cause a huge difference," Wilson said. "In order for the test to be scientifically reliable, the test must be done in compliance with the regulations."

The court is expected to rule in the case early next year.