Law changes loophole in testing for drunken driving

ST. LOUIS -- A law signed by Gov. Matt Blunt this week closes a loophole that allowed some drivers to avoid drunken driving charges because of the way tests were administered in emergency rooms.

Previously, the law required the use of a nonalcoholic antiseptic swab before blood was drawn. The new law, signed by Gov. Matt Blunt on Monday, removes that requirement.

The new law "ensures those guilty of driving while intoxicated will not be able to escape conviction merely because our guidelines on testing alcohol levels were too explicit," Blunt said.

The most well-known case dismissed under the old law involved Rep. Charles Portwood, R-Ballwin, whose drunken driving charge was dismissed because a hospital nurse used the wrong kind of swab two hours after Portwood was involved in an accident in 2004.

The test showed Portwood had an alcohol level of 0.17, more than twice the legal limit. Portwood, who denied he was drunk and said he fell asleep while driving, later pleaded guilty to leaving the scene of an accident, a misdemeanor. He was re-elected in 2006.

The bill's sponsor, Rep. Neal St. Onge, R-Ellisville, said Tuesday that the measure was sought by law enforcement and was unrelated to Portwood's case.

However, St. Louis County Prosecuting Attorney Robert P. McCulloch, who dismissed the case against Portwood, said that case was the impetus for the proposed change.

When the former law was adopted in 1982, it was probably considered a safeguard so alcohol from the swab would not contaminate the blood drawn from the patient, he said. But tests since then have shown that alcohol wipes have no effect on blood samples. The alcohol swabs contain isopropyl or rubbing alcohol, while liquor contains ethanol. The blood test checks for ethanol.