Probable cause at issue in case before Missouri Supreme Court

JEFFERSON CITY, Mo. -- Ross Swanberg and Chester James Tolliver admitted they had been drinking when police arrested them in separate incidents in Taney County. And they admitted they previously had been in automobile accidents.

But neither man was in his vehicle when he was arrested. And their admissions weren't enough reason for police to presume they had been driving while intoxicated, an attorney argued Thursday before the Missouri Supreme Court.

The pair of separate but similar cases both question the amount of evidence necessary for police to assert probable cause to make drunken driving arrests. The chief question before the Supreme Court is whether police can assume people were driving while intoxicated because they appear drunk and previously were driving -- even though they are not in their vehicles when arrested. And if so, how much time can pass before the presumption is no longer true?

If the Supreme Court sides with the defendants, the result could encourage intoxicated drivers to leave accidents and hide for police or to grab an alcoholic drink after an accident in order to muddle the facts and diminish their chances of arrest and conviction, said State Solicitor Jim Layton of Attorney General Jay Nixon's office.

Ripple effect

A decision also could have ripple effects for the application of probable cause standards in other cases, ranging from search warrants to sexually violent predators, Layton said.

In Swanberg's case, a state trooper found his wrecked vehicle early in the morning on July 1, 2001, on a curvy section of Missouri 76. But no one was in the vehicle. Less than an hour later, the officer found Swanberg at a nearby convenience store, where Swanberg admitted he had been in an accident and failed three sobriety tests. The officer then arrested Swanberg, who refused to take a breath test to determine his blood-alcohol content. The state Department of Revenue revoked Swanberg's driver's license for one year, citing a state law requiring revocations for anyone who refuses a breath test.

Swanberg argued he became drunk after the accident. On a review of the administrative decision, Taney County Circuit Court Judge Michael Merrell ruled that the trooper lacked probable cause to arrest Swanberg and reinstated his driving privileges. The Missouri Court of Appeals Southern District reversed the judge's decision and ordered Swanberg's license revoked. Swanberg appealed to the Supreme Court.

In Tolliver's case, a Hollister police officer was dispatched to an alleged assault on the night of Dec. 16, 2001, where witnesses said a drunken Tolliver had crashed a vehicle into a parked car used by his ex-wife. When the officer arrived at Tolliver's house, he found Tolliver with a drink in his hand. Tolliver was arrested for driving while intoxicated, as well as other charges, and refused to take a blood-alcohol test.

Tolliver's license was revoked for one year by the Revenue Department because he refused the test. But Tolliver maintained there was no proof he was drunk at the time of the accident.

On a review of the case, Taney County Circuit Judge Tony Williams ruled there was no probable cause to arrest Tolliver and ordered his driver's license reinstated. The Southern District appeals court then reversed the judge's decision and upheld the revocation of Tolliver's license. Tolliver appealed to the state Supreme Court.

Branson attorney David Akers, who represented both men, said that before police made the arrests, they should have investigated further to determine whether the men were drinking before or after their accidents. Only then, Akers argued, could the police have had the probable cause necessary to make the arrests.

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Probable cause cases are SC85124 and SC85137.

On the Net

Missouri Judiciary: www.osca.state.mo.us