Reaction mixed to change in DWI law

New legislation aimed at closing one of the loopholes that defense attorneys use when trying driving while intoxicated cases has been met with mixed reviews from those in the legal community.

The bill, which Gov. Matt Blunt signed July 2, repeals the requirement of the use of alcohol-free antiseptic in cleansing the skin before drawing blood for the purpose of determining intoxication levels.

This circumvents the possibility of blood samples taken using alcohol swabs being tossed out on a technicality because they might render unreliable results, one of an array of strategies some defense attorneys utilize when defending a DWI charge.

The legislation was intended to strengthen drunken driving laws, Blunt said in a prepared statement, by preventing those guilty of driving while intoxicated from escaping conviction because of overly explicit guidelines, but defense attorneys statewide fear it may do more harm than good.

"It doesn't follow good science," said J. Matthew Guilfoil, a Kansas City defense attorney.

The concern among attorneys is that the new law changes what was considered to be a safeguard for protection against false positives when testing blood for the presence of alcohol.

"Studies have shown it makes zero difference whether alcohol is used," said Cape Girardeau County Prosecuting Attorney Morley Swingle.

Swingle gave the example of a local 1989 case, State v. Haners, in which blood test results were suppressed on appeal because a nurse began to use isopropyl alcohol to cleanse the defendant's skin before a state trooper informed him of proper procedure and he used another type of antiseptic to remove the alcohol.

The results were thrown out and the guilty verdict was reversed because the court found the procedure used for the test did not satisfy the requirements set by the law.

According to Dr. Terry Martinez, of Richmond Heights, Mo., a toxicologist frequently called to testify as an expert witness in drunken driving cases, the jury is still out on whether the use of alcohol swabs in blood testing actually does cause a significant problem.

There are good quality nonalcohol antiseptics available, such as diluted chlorine bleach, so there is no reason to risk getting a false positive result, Dr. Martinez said.

"It's just common sense not to use alcohol swabs, even if the possibility of contamination is slight," said Lawrence Wines, a defense lawyer from St. Peters, Mo.

Wines and two other defense lawyers said they heard of instances where tap water was being used in place of antiseptic in the hopes of getting around the statute, a practice which is obviously not medically safe.

Swingle said he didn't foresee it being a problem because blood tests are performed at medical centers and hospitals, which have no stake in the outcome of a DWI charge and are far more concerned with following safety and health regulations.

"If hospitals are using tap water, we have bigger problems," Swingle said.

Although Wines said he doesn't think the new legislation will effect a large number of DWI cases across the state, there are several go-to strategies defense attorneys frequently use in defending clients accused of drunken driving.

Guilfoil said he begins each case with a 55-page questionnaire that helps him highlight what issues he might face in the courtroom, such as prior offenses or medical conditions that may affect sobriety tests, should his client plead not guilty.

He then deconstructs the facts of the case, looking at factors like a lack of probable cause or the defendant having a low metabolic rate, which could cause a deceptively high blood alcohol content, that may play a key role in his defense.

"DWI cases are one of the most fact-specific type of cases that can occur," Guilfoil said.

One defense attorney, Mike McIntosh from Independence, Mo., said he keeps a machine in his office that calculates blood alcohol content levels in his office so he can enter the number of drinks his clients say they consumed, and get a readout on what their level should have been based on their age, weight and metabolic rate.

Any sobriety tests performed by the police are carefully dissected, Wines said, and he looks for any policies and procedures that may not have been properly followed, such as using alcohol swabs in blood tests, or instructing someone to breathe deeply during a breath test, which can affect the blood alcohol level.

When questioning the officer who performed the sobriety tests, Wines said he asks them to point out any signs of sobriety in his client in addition to signs of intoxication, since the law doesn't discriminate in the level of drunkenness, as long as it is over the legal limit, 0.08 percent in Missouri.

Swingle said one source of attack on sobriety tests he often faces when prosecuting DWI cases is not proving that the defendant was intoxicated when arrested, but rather proving they had been inebriated at the time they were driving, something that occurs when a breath sample is borderline. For this reason, two breath tests are supposed to be performed.

"It's an area that can sometimes be an Achilles' heel in DWI prosecution," Swingle said.

Another obstacle Swingle said he thinks can play a role in getting a DWI conviction is the "there but the grace of God go I" feelings of sympathy some jurors may experience when determining the fate of someone who committed a crime that they also may have done.

The new blood testing legislation will further strengthen drunken driving laws by requiring courts to file documentation of all alcohol- or drug-related driving offenses within seven days, and get the information to the State Highway Patrol within 15 days, meaning the offender's record is updated in a timely fashion.

bdicosmo@semissourian.com

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