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- Guilfoil, Matt:
MISSOURI’S LEADING DWI DEFENSE ATTORNEYS CHARGE MISSOURI DEPARTMENT OF HEALTH WITH GROSS INCOMPETENCE AND CONCEALMENT OF CRITICAL PROBLEMS WITH MISSOURI’S BREATH ALCOHOL TESTING MACHINES! CALL FOR IMMEDIATE INVESTIGATION BY ATTORNEY GENERAL.
On October 31, 2006, the Missouri Supreme Court accepted transfer of the case of Vanderpool v. Director of Revenue, 2006 Mo. App. LEXIS 1042 from the Western District Court of Appeals.
Vanderpool deals with the nature and applicability of the Missouri Department of Health’s regulation which requires the police to “observe” a driver for a period of 15 minutes immediately prior to a breath test for alcohol. The decision of the Supreme Court will have major consequences to Missouri motorists who are arrested and accused of driving while intoxicated.
To better explain the significance of the issues before the Court, it is necessary to first examine the already “pathetic” nature of Missouri’s breath testing program.
Due to the scientific and technical nature of blood and breath testing issues, the Missouri legislature has deferred to the “expertise” of the Missouri Department of Health to establish “satisfactory techniques, devices, equipment, or methods” to conduct blood and breath tests. 577.020 and 577.026. In State v. Peters, 729 S.W.2d 243, 244-245 (Mo. Ct. App. 1987), the Missouri Court of Appeals recognized that:
“The above legislative enactments (Sections 577.020 and 577.026) are a substitute for the common law foundation for the introduction of evidence of analyses for blood alcohol, and are mandatory… If the State has failed to comply with these statutes the blood analysis is inadmissible and prejudicial.” Id. (Citations omitted).
Pursuant to that legislative authority, The Missouri Department of Health adopted rules pertaining to the admission of chemical tests of a driver’s blood or breath for alcohol. One of the requirements is that the test subject be “observed’ for at least 15 minutes immediately preceding the breath test.
The regulations do not specify exactly what the breath test officer must “observe” the driver for, but do indicate that no smoking or oral intake is allowed during this time. The breath testing regulations then require that if vomiting occurs, the breath test operator must start over with the 15 minute observation period. The intended purpose of the 15 minute rule is to insure that nothing occurs during the observation period which may contaminate the breath sample, and affect the reliability of the driver’s breath test. Supposedly, we don’t want innocent people going to jail. So what’s the big deal?
THE MISSOURI DEPARTMENT OF HEALTH HAS NOT APPROVED SATISFACTORY “DEVICES” AND “EQUIPMENT” FOR USE IN BREATH TESTING!
The Missouri Department of Health is directly responsible for selecting the evidentiary breath testing devices that will be used to tests citizens arrested and accused of drunk driving.
Early on, The Missouri Department of Health adopted “Specifications for Evidential Breath Testing Instrumentation” setting forth the minimum performance requirements of the devices used during the evidential breath testing process.
These specifications are usually adopted in connection with the DOH’s testing and evaluation of various breath test machines submitted by the respective manufacturers. Among other things, those specifications require that breath testing instruments abort the test in every case where mouth alcohol is present on the breath.
Back in the early 1990’s, The Missouri Department of Health conducted its evaluation of the Intoxilyzer 5000, manufactured by CMI, Inc. At that time, the mouth alcohol detection capabilities of the 5000 was tested.
In order to evaluate the mouth alcohol detection capabilities of the device, three test subjects blew into the 5000 after rinsing their mouths with an ethanol/water solution. Breath tests were then administered every two minutes until the instrument gave zero readings on all three test subjects. None of the test subjects had actually consumed any alcoholic beverages and their blood alcohol levels were all “zero” at the start of the experiment.
According to the Missouri Department of Health’s specifications, whenever mouth alcohol was present, the instrument should have produced an “INVALID SAMPLE” reading and aborted the testing process. It didn’t!
Only during the initial test run on each of the three test subjects did the machine perform properly and abort each subject’s test by indicating an INVALID SAMPLE. During the second breath test conducted on one of the test subjects, the 5000 falsely reported the individual’s BAC was .147%. During the forth test run on another subject, the 5000 falsely reported that the subject’s BAC was .061%. During the sixth test on the remaining subject, the 5000 falsely reported that the individual’s BAC was .124%. All of the falsely reported tests were followed by successive erroneous readings until the readings were down to zero between 10-20 minutes later.
This suggests to the writers that the 15 minute observation period is not sufficient to allow for the dissipation of mouth alcohol. At least 20 minutes should be required!
In none of those cases, did the Intoxilyzer 5000 abort the test and report an INVALID SAMPLE. In short, the mouth alcohol detection system of the Intoxilyzer 5000 was found to be defective by The Missouri Department of Health’s own tests. Nevertheless, the machine was “approved” by The Missouri Department of Health for use in the State of Missouri. Go figure! The expression: “Good enough for government work” comes to mind.
As an aside, The Missouri Department of Health also evaluated the 5000 to determine if the instrument could detect the presence of other interfering chemical substances which might be present in a person’s breath. During this part of the evaluation, small amounts of various chemical substances were introduced into a 0.100 simulator solution. The mix was poured into a simulator which was connected to the Intoxilyzer 5000 and multiple tests were done to see what effect, if any, the presence of these chemical substances would have on the test results.
Under The Missouri Department of Health specifications, the instrument was required to be able to detect the presence of these various chemicals and abort the test, indicating an error message: “INTERFERENCE.” The instrument failed to detect Methanol, Butanol, and Acetone.
Acetone may be a substantial problem, as it is present in the breath of persons who are fasting or who suffer from diabetes. The testing results indicated that the Intoxilyzer 5000 could not distinguish between acetone and ethanol, and added to the .100 expected value.
In one instance, the 5000 produced a result of .111 instead of a .100, and did not abort the test. The same thing occurred when checking for Butanol, which produced an erroneous test result of .182%, and Methanol, which produced a reading of .126. Only six chemical substances were used to evaluate the instrument. Nevertheless, the machine was “approved” by the Department of Health for use in the State of Missouri. Go figure!
The Missouri Department of Health also claims that records of their initial evaluation of the BAC Datamaster no longer exist. One might ask how The Missouri Department of Health could possibly lose the paperwork relating to their evaluation and approval of the most widely used breath testing instrument in the State of Missouri.
A reliable source claims that the documents were intentionally destroyed in 1998, at or around the time of the deposition testimony of a member the breath testing program. The writers are calling upon the Attorney General to immediately launch an investigation into the mysterious disappearance of these and other documents which were not produced in response to formal court discovery requests.
In any event, several of the writers all own BAC Datamaster breath testing devices and all will attest to the fact (and demonstrate publically) that the Datamaster, like the Intoxilyzer 5000, does not reliably detect mouth alcohol.
The results of an “informal” study conducted by The Missouri Department of Health and The Missouri State Highway Patrol in 2000 also confirm the failings of the Datamaster in this regard.
Similarly, the BAC Datamaster used in Missouri was disapproved for use in England, Australia and New Zealand, in part because of its inability to distinguish other non-alcohol chemical substances on the breath.
THE MISSOURI DEPARTMENT OF HEALTH HAS FAILED IN ITS RESPONSIBILITY BY NOT APPROVING SATISFACTORY “TECHNIQUES” AND “METHODS” FOR BREATH TESTING!
Failure to Address Operational Problems
Even in light of the inability of both the Intoxilyzer 5000 and the BAC Datamaster to reliably detect the presence of mouth alcohol, The Missouri Department of Health continues to fail to address problems with the operational procedures being followed by breath test operators across the State.
In particular, The Missouri Department of Health has failed to properly train their breath test operators in the procedures that should be followed when certain error codes or messages appear during the testing process.
The writers have cross-examined dozens of breath test operators, and many maintenance supervisors, most of whom were not even familiar with the various error codes. Of particular concern is the fact that many, if not most operators, do not even know that the error code for mouth alcohol is “INVALID SAMPLE.”
When this error code appears, proper scientific protocol requires that the operator assume that there is mouth alcohol present, and wait an additional 15 minutes before giving a second test. The Missouri Department of Health, unlike the regulatory agencies in many other states, has failed to adopt any regulations on the subject.
In September of 2004, the Missouri State Highway Patrol issued its own policy and mandated that all troopers wait 15 minutes before administering a second test following an INVALID SAMPLE reading. They also mandated that the mouthpieces be changed, a new checklist be completed with the second test, and that the INVALID SAMPLE breath test ticket be retained as evidence. The writers of this article appreciate the fact that at least one State agency recognizes the problem and has decided to address an issue The Missouri Department of Health refuses to even acknowledge publically.
The Missouri Department of Health training slides obtained by the writers indicate that after obtaining an INVALID SAMPLE reading, the breath test operator should wait 15 minutes before administering a second test. The Missouri Department of Health has been very careful not to write this down in any training materials provided to the breath test operators and maintenance supervisors. In most cases, breath test operators are not even furnished with a list of the various error codes for the instruments for fear that defense attorneys will obtain them from the officer and use them in court.
Another operational problem is the frequent use of the no volume (“NV”) or sample control override key to override the sample controls on the BAC Datamaster. Publically, The Missouri Department of Health explains that the NV or sample control override button on the Datamaster is intended to allow an alcohol analysis in a breath sample on a subject who cannot meet the minimum requirements for an automated breath test.
According to National Patent Analytical Systems, Inc., the maker of the BAC Datamaster, this was never the intended purpose of the key. Rather, it was placed there for the convenience and use by maintenance technicians when conducting maintenance procedures on the work bench.
Secretly, The Missouri Department of Health has recognized that by utilizing the NV or sample control override key, in addition to overriding the Datamaster’s breath sampling criteria, when the NV key is depressed, the instrument no longer monitors the breath sample for a mouth alcohol occurrence.
The Datamaster’s breath sampling critieria is the minimum breath flow rate into the instrument; a leveling off of the BrAC slope; the minimum amount of breath delivered of 1.5 liters; and a reduction in the breath flow rate into the machine. These are essential to insure that a sample of alveolar or “deep lung” air is obtained. Under The Missouri Department of Health regulations, this is the only type of air that a breath test operator is allowed to test for alcohol content.
Use of the NV or sample control override key on the BAC Datamaster also adds an unauthorized step to the approved checklist to be followed by breath test operators. The Missouri Department of Health had gone so far as to draft a proposed change in the checklist to allow the use of the NV or sample control override key, but apparently decided against it.
A reliable source informed the writers that the documents relating to the proposed change were ordered destroyed by Missouri Department of Health personnel. Unfortunately for The Department of Health, at least one copy survived.
In any event, The Missouri Department of Health’s specifications for evidential breath testing instruments require that all buttons and keys which influence the subject test must be enclosed within the instrument, accessed only by the use of a code, or locked behind a locked access panel.
The NV or sample control override key is not so restricted, even though its use clearly influences the subject sample. Again, the Missouri State Highway Patrol stepped forward in September of 2004, and banned the use of the NV key by its troopers, despite The Missouri Department of Health not bothering to mandate such precautions. All states but one have banned the use of the NV key by regulation and/or have deactivated the override function.
Improper Repairs Being Made to Breath Test Machines
Another problem not known to the public has to do with who should be making major repairs to both the Intoxilyzer 5000 and the BAC Datamaster. As far as instruments maintained by agencies other than The Missouri State Highway Patrol, it appears that The Missouri Department of Health has delegated a large part of this responsibility to the CMSU Safety Center in Warrensburg.
Written Missouri Department of Health documentation obtained by the writers indicate that there has been a great deal of controversy between the manufacturers and the Safety Center regarding the propriety of the Safety Center making repairs which the manufacturers believe must be done at their factories in order to maintain the reliability of the machines.
In July of 2001, a former employee of The Missouri Department of Health breath test program wrote a letter directly to Bill Whitmar, then in charge of the breath alcohol testing program, and warned that CMI (the manufacturer of the Intoxilyzer 5000) had cautioned against certain repairs being made without a subsequent factory calibration, and advised that the machines would not hold up in court.
A list of 25 machines from 25 different departments that had received unauthorized repairs was attached to the letter. Apparently, the warning was disregarded, as the Safety Center continues to conduct such repairs instead of the machines being sent back to the factory for repairs and factory calibration.
Similarly, the makers of Datamaster have notified The Missouri Department of Health about problems related to repairs made to their equipment at the Missouri Safety Center.
In a July 2004 letter written by the President of NPAS, Inc., to The Missouri Department of Health, the manufacturer warned the Department of Health that:
“Incorrect or careless maintenance techniques, along with the use of parts that we specifically do not recommend, will unfairly reflect on the maintenance history of the instrument and could present serious issues if brought to the attention of the courts.”
In another letter issued the same month, NPAS, Inc. warned that unsanctioned repairs had apparently been made to one of the Fort Leonard Wood Datamasters.
In a letter to the Missouri Safety Center in November of 2004, the President of NPAS, Inc. warned that “activities regarding maintenance performed by your staff may be deficient in several areas. Among these are:
1. A possible lack of competency on the part of technicians owing to the use of parts and procedures not sanctioned by us.
2. A possible lack of competency on the part of technicians owing to the quality of work as seen in the incorrectly installed sample chamber assemblies.
3. A failure to maintain complete and accurate records regarding the maintenance performed on these instruments.”
Because of these matters, the manufacturer indicated that it would not issue the Missouri Safety Center a “Service Center Certificate.”
Other repairs are being made by police officers in the field who have received a “Type II” permit from The Missouri Department of Health. A Type II permit “technically” authorizes such officers to make repairs to their police department’s breath test machine.
Pursuant to a subpoena served upon the manufacturer, a copy of an email sent to the President of NPAS, Inc. by Bob Welch at the Missouri Safety Center was recently obtained. In that e-mail, Welch stated that he agreed with the manufacturer of the Datamaster, and stated he also felt “it is unwise to train our Type 2 Supervisors to repair instruments in the field.”
Welch continued that he had “opposed this from the beginning, however it has also been drilled into us that we must keep instruments up and running and have fewer than 10% down statewide at any given time. So given this situation we must train our “field guys” at least in the basics of adjusting a voltage from time to time.”
The writers note that proper voltage settings are critical to the reliability of any breath test conducted on either the Intoxilyzer 5000 or the Datamaster. The writers also suggest that keeping the machines “running” is not a justification for delegating the responsibility for proper instrument repair in the field to those who are not capable of making the needed repairs.
Missouri Does Not Require Duplicate Breath Testing
In Missouri, under DOH regulations, a police officer is only required to administer one breath test following his or her arrest for Driving While Intoxicated. Currently, 28 states require that a motorist be given a second test to confirm the reliability of the first test.
The states are Alabama, Arizona, Arkansas, California, Connecticut, Florida, Georgia, Idaho, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, North Carolina, North Dakota, Oklahoma, Pennsylvania, Rhode Island, Texas, Vermont, Virginia, Washington, Wisconsin and Wyoming.
Good scientific principles require it. As early as 1986, the National Safety Council Committee on Alcohol and Other Drugs recommended that at least two separate breath samples collected and analyzed individually. The Committee further recommended that the breath samples be collected at intervals of at least two, and not more than ten, minutes apart. The results must agree within .02%. The Chairman of that Committee was Kurt Dubowski, the father of breath alcohol testing in the United States, if not the world.
Think about it. When you balance your check book, do you run the numbers once? No. You check them twice to make sure that you, or the calculator, didn’t make a mistake. Mandatory dual testing would help eliminate the possibility of both operator and machine error.
Assume, for example, that an individual belches or regurgitates a small amount of alcohol up from the stomach into the mouth as he or she is blowing into the 5000 or Datamaster, causing an erroneously high reading of say, .147%. The mouth alcohol detection system does not work, and the instrument does not indicate that the sample is INVALID.
In Missouri, the test result will then be used as prima facie evidence of the driver’s intoxication, and the driver will be subjected to criminal penalties and the loss of his or her driver’s license.
In a duplicate testing state, however, after a short waiting period, during which time the mouth alcohol is presumably dissipating, the driver will be instructed to furnish a second breath sample. This time, the machine reports that the driver’s BAC is .070%, which may or may not be representative of the driver’s true BAC. Since the results do not agree within .02%, an additional waiting period must occur, and a third test must be The third test must then agree with the second.
In short, in duplicate testing states, there is a built in protection against breath samples being contaminated with mouth alcohol. Eventually, if the Department of Health and the legislature don’t have the will or courage to change things, it will be up to our Courts to intervene. Incompetence can only be tolerated so long.
Until Missouri requires duplicate testing, however, it is absolutely essential that police officers are required to “carefully watch” the driver during the critical 15 minute observation period. That brings us to the Vanderpool case.
In Vanderpool v. Director of Revenue, 2006 Mo. App. LEXIS 1042, Vanderpool was arrested and charged with DWI. The arrest occurred in a remote part of Benton County at about 2:00 in the morning. The State Trooper who made the arrest then transported Vanderpool and Vanderpool’s passenger (who was not handcuffed or searched) to the Sheriff’s office in Warsaw, Missouri.
On the way to the Sheriff’s Office, in addition driving the vehicle over dark country roads and on a major interstate highway, the trooper carried on conversations with both Vanderpool and his passenger. Once they arrived at the station, Vanderpool was escorted inside, and was given a breath test less than 10 minutes later.
During the trial, Vanderpool objected to the admission of the breath test on the grounds that he had not been properly observed for a full 15 minutes preceding his breath test. The trial court agreed, and the breath test was not admitted into evidence.
The Director of Revenue appealed. In affirming the trial court’s decision, the Western District Court of Appeals noted that “(c)ommon sense tells us that a member of the Missouri Highway Patrol, who is trained to be a careful and safe driver at all times, operating his patrol vehicle on a rural highway in the middle of the night, would be “observing” the road and not his passenger.” Citing their previous decision in Carr v. Dir. of Revenue, 95 S.W.3d 121, 129 (Mo. App. 2002), the Court reiterated that:
“It is our belief that the ‘observation requirement’ is critical to determining whether in fact an individual has driven while illegally intoxicated. The results of a breathalyzer test are given much weight, as they should be, in our judicial system. However, in order to insure the veracity and precision of this testing device does not become undermined, it is imperative for the police to follow minimum administrative guidelines in observing the driver before the test is given.” Id.
In Carr, the Western District previously emphasized that:
“Drinking and driving experts are resolute that this fifteen minute waiting period plays a critical role to insure that the breathalyzer test achieves an accurate result. See 3 DONALD H. NICHOLS & FLEM K. WHITED III, DRINKING/DRIVING LITIGATION CRIMINAL AND CIVIL § 19:9 (2d ed. 1998) (”The arresting officer or Breathalyzer operator must continuously observe the subject during the fifteen to twenty minutes prior to the test. This waiting period is necessary to reduce interference from alcohol or other substance that may have been present in the mouth… The presence of such compounds in the mouth at the time of breath collection will produce an extremely high breath alcohol value that is far from indicative of alveolar breath alcohol concentration.”); 4 DAVID L. FAIGMAN ET AL., MODERN SCIENTIFIC EVIDENCE, § 33-2.3.2(c) (2002) (”Some foreign objects in the mouth, such as chewing tobacco, may trap alcohol and affect the breath test . . . If the above are ruled out by observation, and the 15 minute waiting period is observed and documented, any interference with a valid test should not have occurred.”); HARVEY M. COHEN & JOSEPH B. GREEN, APPREHENDING AND PROSECUTING THE DRUNK DRIVER § 7.04(11)(e) (2002) (”The defendant should be observed for 15 to 20 minutes prior to blowing into the breath-alcohol analyzer to ensure that he or she ingests nothing and brings nothing up from the stomach (by burp, belch, regurgitation, etc.), since these can affect the accuracy of the test.”).” Id. at 129.
The reason that the Supreme Court’s decision in Vanderpool will have a major impact upon the reliability of breath testing in Missouri(and the rights of all motorists) is because the Supreme Court is being asked by the Director of Revenue to ignore The Missouri Department of Health regulations and to shift the burden to drivers to prove that something occurred during the 15 minute observation period that affected the reliability of the breath test.
Incredibly, the Director of Revenue is arguing that even though The Missouri Department of Health regulations require that a driver be “observed” for 15 minutes prior to the breath test, such observation is not necessary, even when the driver isn’t in the same room or the same vehicle with the officer during all or part of that time.
What that means is that any motorist who is stopped at a checkpoint 5 minutes after finishing a drink at a local bar or restaurant can be immediately marched over to the breath test machine, told to blow, and then be forced to convince a judge or jury that he or she finished drinking a beer 10 minutes before, and that the (contaminated) test result of .147 is unreliable.
In Vanderpool, Justice Smith, writing for the majority, warned that:
“Other than Carr, the history of the Section 302.505 suspension and revocation cases reflects a slow erosion of requiring compliance with the fifteen-minute observation period. This is unfortunate. The “requirement imposes a relatively insignificant administrative burden on the police, and . . . its benefits in instilling confidence in the testing results far outweigh any inconvenience.” Carr, 95 S.W.3d at 129.
On balance, given the purpose of the observation period and the slight inconvenience to law enforcement to effectuate that purpose, we can see no reason for allowing the observation period to be treated as just another administrative hurdle that can be ignored, in whole or part, in order to achieve a desired result.” Id.
The writers submit that shifting the burden to the driver in these cases is not only wrong, but that it is completely in opposite to the American system of justice. A learned judge one said: “Carnage on the highways, and all other crimes, are subservient to the carnage at Valley Forge, Yorktown, and Gettysburg, where the civil liberties now hanging in the balance were carefully shaped and hammered into rights so clean and pure that they stand the test of time and resist encroachment.” McDonnell v. Com’r of Public Safety, 460 N.W.2d 363 (Minn. App. 1991). The rights of all Missourians are hanging in the balance!
Carl M. Ward, Bernard Edelman, Jeffrey Eastman, J. Matthew Guilfoil, Michael Selby, Travis Noble, Michael McIntosh, Robert S. Adler, Branson Wood, Robert Murray, Joseph Passanisse, Robert Childress, Daniel Moore, Lawrence Wines, John Newsham, Kimberly J. Benjamin, Timothy R. Cisar, Daniel Dodson, H. Marvin Gilmore, Kerry Rowden.
Breath Testing in Missouri DWI Cases: The Issue of Partition Ratio and the Fallacy of the “Average Person”
February 21, 2007 on 3:25 am | In Breath Tests, Blood Tests, DUI, Missouri, DWI, Drunk Driving, Driving While Intoxicated, DWI Attorneys, DUI Attorneys, Intoxilyzer 5000, BAC Datamaster, Missouri DUI, Missouri DWI, Chemical Tests, Police, Alcohol, Missouri DWI Research References, Partition Ratio | No Comments
Breath testing machines like the Intoxilyzer 5000 and BAC Datamaster attempt to measure human blood alcohol levels in Missouri DWI and other similar cases.
However, a little known fact by lay people is that these breath machines do not actually measure blood alcohol content, they measure breath alcohol content. These machines measure a sample of the subject’s breath alcohol content, and then mathematically convert the breath results to an estimation of a blood alcohol content equivalent.
In order to perform this conversion, an assumption must be made that the alcohol content of 2100 ml of breath is the same as the alcohol content of one milliliter of blood.
The further assumption must be made by the breath machine that the breath sample trapped and measured by the machine is truly representative of the breath of the subject being tested.
A primary source of scientific error in Missouri DWI cases concerns a situation where the subject being breath tested has an actual blood to breath partition ratio which is lower than 2100/1 which is the equation arbitrarily programmed into the breath testing machines in Missouri. This partition ratio of "2100/1" is the proper ratio for the “average person,” meaning if you line up ten people under suspicion for arrest of DWI, subject #5 in the middle will likely have a true partition ratio of “2100/1,” while the four on his left will be lower and the four on his right will be higher.
Breath testing machines in Missouri DWI cases measure breath alcohol, which is reported as the equivalent of venous blood alcohol. These breath testing machines do not measure or report true arterial alcohol.
The 2100/1 average partition ratio is based on many scientific experiments performed on human subjects which established that there is approximately as much alcohol in 2100 ml of lower alveolar air as there is in 1 ml of venous blood. It is relatively easy to draw venous blood and very difficult and dangerous to draw arterial blood for laboratory analysis. The high pressure in arteries results in serious hemorrhage when punctured.
The original scientific work, as summarized in “Breath-Alcohol Analysis: Uses, Methods, and Some Forensic Problems– Review and Opinion,” by M.F. Mason and K.M. Dubowski, Journal of Forensic Sciences, 1975 pp. 9-41, was based primarily on simultaneous breath versus venous alcohol determinations with occasional arterial and capillary blood draw values.
The 2100/1 average partition ration is also subject to change, depending on whether or not the subject is in the absorptive phase or the post-absorptive phase of alcohol consumption in his or her body.
While a subject is still absorbing alcohol from the stomach, the absorptive phase of alcohol consumption, this alcohol is being quickly delivered to the lungs. This causes more alcohol to be excreted in the lungs than would normally be expected compared to venous alcohol (a blood draw), and the breath testing machine will read slightly high– in other words, the breath/blood ratio is less than the 2100/1 the machine is set to automatically assume. In the post-absorptive phase of alcohol consumption, the breath/blood ratio tends to be a little greater than 2100/1 and the breath testing machine will, on the average, give a slightly low result compared to venous alcohol (a blood draw).
The 2100/1 average partition ration is programmed into all breath testing machines sold in the United State for making DWI arrests. Due to biologic variation, normal individuals have blood/breath ratios which range from approximately 1100/1 to 3200/1!
Experiments have shown that 81% of individuals have ratios within plus or minus 15% of the 2100/1 average partition ratio the breath testing machine is assuming is valid for everyone who blows into it!
As discussed, a blood/breath ratio less than 2100/1 will result in a false high breath test result and a ratio greater than 2100/1 will give a false low result.
The Defense of “Rising BAC” or Rising Blood Alcohol Content in a Driver’s License Suspension Hearing in a Missouri DWI Case and “Retrograde Extrapolation”
January 24, 2007 on 5:25 am | In General, Breath Tests, Blood Tests, DUI, Missouri, DWI, Drunk Driving, Driving While Intoxicated, Driving Under the Influence, DWI Attorneys, DUI Attorneys, Intoxilyzer 5000, BAC Datamaster, Missouri DUI, Missouri DWI, Chemical Tests, Missouri Caselaw, Missouri DWI Administrative Hearings, Driver's License Suspensions, Missouri Director of Revenue, Alcohol, Retrograde Extrapolation, Rising BAC Defense, Partition Ratio | 1 Comment
Our office receives many inquiries about how the “Rising BAC” or rising blood alcohol content defense works in a Missouri DWI case. This is particularly true regarding civil administrative hearing questions where the Missouri Director of Revenue is attempting to take your driver’s license away for testing above the legal limit.
In the civil portion of a Missouri DWI case that involves an administrative hearing for testing above the legal limit, it is required that the Missouri Director of Revenue produce evidence of a chemical test result for the driver that is above the applicable legal limit at the time you were driving. Note, I did not say above the legal limit at the time that you consented to the breath test at the police station, which is often a lot later than the time you were driving.
The Missouri breath testing statutes only indicate that the results of a chemical test will be deemed accurate at the time you took the test, not at the time you were driving. In other words, it is illegal to drive a motor vehicle in Missouri while above the applicable legal limit, but it is not illegal to be above the applicable legal limit at the time you blew into a breath machine an hour after you were stopped. Drinking and driving, per se, is not illegal without impairment, that is why bars have parking lots.
You see, your alleged “intoxication” must be linked to your driving, and if it cannot be shown that you were above the applicable legal limit at the time you were driving in addition to being above the legal limit at the time you gave a breath test at the police station, you will prevail, unless the State is successful in utilizing a technique called “retrograde extrapolation” to “extrapolate back” through a mathematical formula which tries to show you were above the limit at the time of driving.
In Verdoorn v. Dir. of Revenue, 119 S.W.3d 543, 546 (Mo. banc 2003), the Missouri Supreme Court reviewed the statutory scheme for suspended or revoked driver’s license cases involving drivers arrested for driving while intoxicated.
RSMo. Section 302.505.1 permits the Missouri Department of Revenue to suspend or revoke the driver’s license of any person arrested upon probable cause of driving while intoxicated in an initial administrative hearing prior to the driver having the right to a real hearing in a real court in the circuit court in the county where they were arrested.
If your license is suspended in this initial administrative hearing (which is conducted by a person who works for the department that is trying to take your driver’s license away!), you have a limited right and a limited amount of time to request a trial de novo in Circuit Court.
At a trial de novo reviewing the initial decision to suspend or revoke your driver’s license for testing above the legal limit, the trial the court must determine whether the suspension or revocation is supported by evidence that:
(1) the driver was arrested upon probable cause for violating an alcohol-related offense; and,
(2) the driver’s blood alcohol concentration exceeded the legal limit of .08%.
RSMo. Section 302.535.1.
The “burden of proof” is on The Missouri Director of Revenue to establish grounds for the suspension or revocation or your driver’s license by a preponderance of the evidence. RSMo. Section 302.535.1.
In applying this statutory scheme, The Missouri Supreme Court in Verdoorn found that the Missouri Director of Revenue must initially present prima facie evidence to establish probable cause for the arrest and that your blood alcohol level was .08 % or greater.
The Verdoorn court found that any such evidence presented by the Missouri Director of Revenue “creates a presumption that the driver was intoxicated.” The driver is then entitled to rebut the director’s prima facie case with evidence that his blood alcohol content did not exceed the legal limit. Ultimately, the hearing officer or circuit court must determine whether the director has met her burden of proof by a preponderance of the evidence.
Under the current statutory scheme, the driver may rebut the Missouri Director of Revenue’s prima facie case by presenting evidence that the breath test reading does not accurately reflect the driver’s true BAC (blood alcohol content) and that the driver’s BAC at the time of the breath test was under the applicable statutory limit.
In Booth v. Director of Revenue, 34 S.W.3d 221 (Mo. App. 2000) (overruled in part on other grounds by Verdoorn, supra.), driver was stopped by a Missouri Highway Patrol trooper for driving erratically, which consisted of weaving and swerving onto the shoulder of the road. The trooper noticed a strong smell of alcohol on driver, that her eyes were bloodshot and that her speech was slurred. As a result, trooper administered several field sobriety tests, including the HGN horizontal gaze nystagmus test (the eye test), counting backwards from eighty to sixty-five, and reciting the alphabet.
The driver allegedly performed each test poorly and was given a PBT portable breathalyzer test, which showed a blood alcohol content above the applicable legal limit. The trooper arrested driver for DWI, took driver to the station for another breath test, and Driver’s blood alcohol concentration was measured at .182%.
At trial, Booth’s expert testified that driver had only 49% of normal lung function, had both inhalation and exhalation restrictive deficit, and that her pulmonary function was “quite poor, considerably abnormal.” The expert further testified that the result of tests performed on driver following her arrest indicated that she had a blood-to-breath ratio of one-half the normal, expected ratio.
As a result, driver’s expert testified that the breathalyzer results would be 200% of her actual blood alcohol, or twice as much. As a result, the expert estimated that driver’s actual blood alcohol at the time the breath test was administered at the station would have been .09%, less than the required .10% necessary for suspension of her driving privileges. (Note this case was when the applicable legal limit was 0.10% and not 0.08%).
The court in Booth held that the driver presented substantial evidence to rebut the Director’s case by a preponderance of the evidence. The Missouri Director of Revenue offered no evidence to counter the driver’s expert testimony, and lost the case. Booth has not been overruled.
Recently, in Lawson v. Director of Revenue, 145 S.W.3d 443 (Mo. Ct. App. 2004), the driver was stopped for speeding. During the police officer’s contact with Lawson, he smelled an odor of alcohol, and he therefore asked her to undergo field sobriety testing.
Lawson failed the three sobriety tests she was asked to perform. The officer also noted that Lawson’s eyes were watery, glassy, and bloodshot, and that her pupils were dilated. The officer’s notes also indicated that her speech was slurred and that she swayed and staggered in her attempts to walk and turn. Lawson stated during the stop that she had consumed two beers prior to driving. Lawson was placed under arrest and taken to the where she was consented to a breath test which produced a result of .081 percent.
At trial, the driver presented expert testimony from Dr. William Hemphill, a forensic toxicologist. His testimony focused upon the maintenance testing results of the breathalyzer subsequently used to test Lawson, and how it indicated that the machine tended to register a blood alcohol level that was inaccurately high.
The maintenance testing includes a calibration check in which a sample solution is used that is supposed to provide a sample readout of .100 percent (with a margin of error of .05 percent), over a set of three separate tests. The machine used on Lawson had been tested only a few days previously.
During that testing, the machine produced calibration test results of .099, .102, and .102 during the three tests. Dr. Hemphill testified that, based on the calibration test results, that the machine was registering average results that were .002 percent high.
Consequently, when Lawson underwent breath testing, which indicated a .081 blood alcohol level, Dr. Hemphill testified that, as a matter of reasonable medical certainty, Lawson’s actual blood alcohol level was somewhere between .079 and .080, just below the .80 limit. The Lawson court held the trial court did not err in holding that Lawson had rebutted the Director of Revenue’s prima facie case.
As in Booth, the Missouri Director of Revenue offered no expert testimony to contradict the driver’s expert testimony, and the driver was deemed to be entitled to challenge the accuracy of the breath test.
SO HOW DOES THE RISING BAC DEFENSE WORK?
It is clear that in Missouri DWI cases, just because a driver tests above the legal limit at the police station some time after they are seen driving, the results of this chemical test do not necessarily accurately show what the driver’s true BAC was at the time he or she was driving.
Because the body is constantly absorbing or eliminating alcohol when you are drinking, your BAC is constantly rising or falling. The million dollar question, of course, is whether it is rising or falling in your particular DWI case.
The concept of alcohol being absorbed or eliminated by your body is fairly straightforward. You see, a common misconception in DWI cases is not how much a you have had to drink but when you drank it and what else you have consumed in addition to the alcohol, and other specific information about your particular metabolism.
What has been consumed in addition to the alcohol will largely control the rate at which your body will absorb and then eliminate alcohol. For instance, I am 5’11, 210 pounds. If I drink 4, 12-ounce beers containing 0.05% alcohol on an empty stomach, the alcohol will absorb fairly quickly into my bloodstream and will get me more quickly to the “true” BAC you would expect me to be at in relation to the consumption of that amount of alcohol. In such a case, the results of a breath test will often be about the same as a blood test in measuring blood alcohol content, because I absorb the alcohol into my bloodstream quickly on an empty stomach.
On the other hand, let’s say I have a steak dinner and have a full stomach and then quickly drink those same 4, 12-ounce beers prior to driving. I will be in an absorptive state much longer in processing the same amount of alcohol because the pyloric valve at the bottom of my stomach is closed. This prevents the same amount of alcohol from reaching my blood stream as quickly as on an empty stomach, and it will ultimately take me longer to feel the effects of the alcohol in addition to keeping my BAC lower than the same consumption for a much longer period before I begin eliminating the alcohol. In this case, the results of a breath test will often differ significantly from a blood test in measuring blood alcohol content, because the alcohol has not yet hit my blood stream.
In short, if someone slugs a couple down for the road on an full stomach making there alcohol absorption much slower, they are much more likely to be below the applicable legal limit at the time of driving, and then their BAC will rise as the body begins processing and eliminating the alcohol. So in these cases, it often happens that a breath test at the police station will be above the applicable legal limit despite the fact that the driver was actually below the legal limit at the time that they were driving.
It usually takes the body about an hour to absorb a 12-ounce beer and reach true blood alcohol concentration for that amount of alcohol. This is, of course, just stating averages, as it has been actually shown that various people can reach true blood alcohol content as much as ten times faster than others. Dubowski, “”Absorption, Distribution and Elimination of Alcohol: Highway Safety Aspects”, Journal on Studies of Alcohol, Supp. 10 (July 1985).
As mentioned previously, regardless of science or reality, the state will almost always attempt to “guess backwards” at what the driver’s BAC was at the time of driving using the breath test that was obtained much later, through an estimation called “retrograde extrapolation.”
Retrograde extrapolation is a mathematical formula which attempts to categorize all individuals as the same, and does not take into account the differences between people, which of course, totally ignores true science or reality.
The science community has almost uniformly condemned the practice of the “guessing” inherent in the practice of “retrograde extrapolation” as unreliable. “Breath Alcohol Analysis: Uses, Methods and Some Forensic Problems”, 21 Journal of Forensic Sciences 9.
This, of course, will not stop the State of Missouri from attempting to utilize the practice to convict as many people as possible despite it’s shortcomings.
While the previous caselaw indicates that Missouri permits you in a Missouri DWI case to present the rising BAC defense, it does require you to prove that your blood alcohol content was different at the time you were driving than at the time the breath test was taken at the police station, and if you cannot, it essentially creates a presumption of guilt that is hard to overcome.
For the State to bring in their own expert witness to rebut a “Rising BAC defense” by performing a “retrograde extrapolation” calculation to attempt to correlate your BAC above the legal limit at the time you took a chemical test at the police station with a blood alcohol content allegedly above the legal limit at the time you were driving, the expert must have your accurate drinking and eating history prior to being arrested.
The reason is simple. The criminalist doing the “retrograde extrapolation” calculation must know that you were in the alcohol “eliminative” phase. A criminalist cannot then do a valid “retrograde extrapolation” without a drinking and eating history.
Of course, the State will not likely be able to point to any scientific literature or case law that supports a “retrograde extrapolation” when the expert of person performing the calculation does not have any of the following factors:
(1) when you began to drink;
(2) when you stopped drinking;
(3) how much you drank;
(4) what you drank;
(5) how much you weighs, and,
(6) if you had a full or empty stomach.
A preeminent forensic scientist, Dr. Kurt M. Dubowski, summarized the problems with “retrograde extrapolation” in his frequently cited article, “ Absorption, Distribution and Elimination of Alcohol: Highway Safety Aspects”, first published in the Journal of Studies of Alcohol.
Dr. Dubowski concluded “…no forensically valid forward or backward extrapolation of blood or breath alcohol concentrations is ordinarily possible is a given subject and occasion solely on the basis of time and individual analysis results”.
The Criminal Appeals Court of Texas in Mata v. State, 46 S.W.3d 902 (text. Crim. App. 2001), addressed this issue and the scientific technique of “retrograde extrapolation” in excruciating detail. The Mata Court took Judicial Notice of scientific literature in the area and cited in its opinion numerous publications.
The cited authority included that of Richard Watkins, Assistant Director of the Phoenix Crime Lab, and Eugene Adler, a toxicologist for the Arizona Department of Public Safety. Id. At 910. ( See The Effect of Food on Alcohol Absorption and Elimination Patterns, 38 J. of Forensic Science 285-291 (1993). The Mata Court, citing from Watkins and Adler, stated that:
The limitations and pitfalls associated with retrograde extrapolations are often not appreciated by lawmen and the courts. The authors conclude that “ any attempt at retrograde extrapolations should be made with caution, and performed by a person able to assess and discuss the applicability of a retrograde extrapolation to a particular situation.” Id. at 910.
The court noted that Watkins and Adler were cautious about the reliability of retrograde extrapolation, Id. The court relying on other experts in the field wrote the following.
They write that retrograde extrapolation is a “dubious practice” and that expert testimony on the issue “requires careful consideration of the absorption kinetics of ethanol and the factors influencing this process”.
They explain that “the absorption profile of ethanol differs widely among individuals, and the peak [BAC] and the time its occurrence depends on numerous factors.
Among other factors, the drinking pattern, the type of beverage consumed, the fed or fasted state, the nature and composition of foodstuff in the stomach, the anatomy of the gastrointestinal canal, and the mental state of the subject are considered to play a role.”
The Mata Court acknowledged that few jurisdictions have considered the reliability of “retrograde extrapolation” because many states have eliminated the need for “retrograde extrapolation” as a matter of law. Id. at 913.
The statutes in these jurisdictions provide for a rebuttable presumption if the persons BAC is over the legal limit, “assuming the test was conducted within a specified or reasonable time from driving.” Id.
The Mata Court was only able to find two courts in the entire nation that have touched upon issues of reliability of “retrograde extrapolation”. Id.
An Arizona appellate court made reference to the issue in a footnote stating that the science of “retrograde extrapolation” has achieved general acceptance in the scientific field”. Id. Citing Ring v. Taylor, 141 Ariz. 56,59 fn 6. ( Ariz. App. 1984).
The other court that discussed the issue of “retrograde extrapolation” was the Alabama Court of Appeals in Smith v. Tuscaloosa, 601 So. 2d 1136 ( Ala. Crim. App. 1992) Id. At 913-914. The Alabama Court disagreed with the Arizona Court and found from studies that “retrograde extrapolation” is an unreliable method of determining a persons BAC. Id.
The inadequacies of retrograde extrapolation extend beyond mere technical inaccuracies to problems which are inherent in the basic premises and calculations of this technique. These inadequacies render retrograde extrapolation inherently untrustworthy and therefore inappropriate for use as evidence to convict drunk drivers. Id. at 914.
After complete and through study of retrograde extrapolation, the Mata Court concluded that even those who advocate retrograde extrapolation as a reliable technique use it only if certain factors are know, “such as the length of the drinking spree, the time of the last drink, and the persons weight”. Id. 915. The Texas Court further concluded:
The court evaluating the reliability of a retrograde extrapolation should also consider (a) the length of time between the offense and the tests administered; (b) the number of tests given and the length of time between each test; and (c) whether, and if so, to what extent, any individual characteristics of the defendant were know to the expert in providing the extrapolation.
These characteristics and behaviors might include, but are not limited to, the person’s weight and gender, the person’s typical drinking pattern and tolerance for alcohol, how much the person had to drink of the day or night in question, what the person drank, the duration of the drinking spree, the time of the last drink, and how much and what the person had to eat either before, during, or after the drinking. Id. at 916.
HOW DO I PRESENT A RISING BAC DEFENSE IN A MISSOURI DWI CASE?
One method is to have the driver fill out a form indicating all that he or she drank, ate or consumed on the night of arrest, and then have an expert determine what his or her BAC was at the time of driving.
The more the driver can substantiate or prove what he or she actually ate or drank on the night of arrest, and at what time, the better. This can be done through testimony of people that were with the subject prior to arrest who observed the consumption, waitresses or bartenders who served, or through bar receipts or credit card statements.
Another way to present this defense is to have the driver consume the same amount of alcohol in a laboratory setting, and then have a qualified technician give simultaneous blood and breath tests at fixed intervals to see how breath testing compares to true blood testing over a set period of time after consumption.
In such an example, blood is drawn from the subject during the optimal absorptive peak after consumption, where the alcohol has been evenly distributed into the subject’s blood.
When you compare the blood draws (which obviously more accurately show blood alcohol content and are not susceptible to a curve through absorption and elimination of alcohol like breath tests) and compare them to simultaneous breath tests, the differences can be staggering.
The benefit of this type of testing is that, in addition to giving a means to raise a “rising BAC” defense, you can also measure your true partition ratio by doing this side-by-side blood to breath comparison.
You see partition ratio is the formula that is artificially plugged into the breath test in an equation to convert breath to blood. For a breath machine to actually be able to measure your true blood alcohol content, you would half to be capable of blowing 2100 liters of actual breath (that is 700, 3-liter coke bottles!) or the equivalent of a 50-gallon drum into the machine. If this were possible, breath testing would be an true measurement of actual blood alcohol content.
Because no one can obviously do this, breath machines take a fixed, small amount of breath, and then convert it with the formula “2100/1” (the “partition ratio”) and then kick out a result which is relied upon by the State of Missouri as a “true” measurement of blood alcohol content and not just breath alcohol. In short, the machine is using a formula to guess what your blood alcohol content is using averages.
The problem is that partition ratio is different in all people, and not everyone is “2100/1.” This is just the average. In other words, if you line up 10 people, the one in the middle will be the “average person,” and that person who is representative of the average person might have a true partition ratio of 2100/1. For that one “average person,” 2100/1 could be reliable. But the four people on the left of him have a statistically lower true partition ratio, and the four to the right have a higher true partition ratio.
By utilizing side-by-side blood to breath comparisons, not only can you often debunk the reliability of the results of the breath test through a rising BAC defense, where the state will attempt to correlate you being above the legal limit at the time you were driving with a breath test at the time you blew at the station, but you can also kill two birds with one stone, and possibly show that you partition ratio was actually different than 2100/1, and get to your “true” blood alcohol concentration through the blood tests.
The Driver’s Right to An Independent Chemical Test in Missouri DWI Cases
January 24, 2007 on 3:17 am | In Breath Tests, Blood Tests, DUI, Missouri, DWI, Drunk Driving, Driving While Intoxicated, Driving Under the Influence, DWI Attorneys, DUI Attorneys, Missouri DUI, Missouri DWI, Chemical Tests, Missouri Caselaw, Implied Consent, Refusals, Police | No Comments
The Driver’s Right to An Independent Chemical Test in Missouri DWI Cases
A little known but important fact that most drivers are not aware of in Missouri DWI cases is that they have a right to an independent chemical test at their own expense (separate from the police test at the station—usually the police breath test) in certain instances. This is an important right, but a limited one. You have to know the rules, or you are not going to get your independent test.
Pursuant to RSMo. 577.020, a driver has a statutory right to have “a physician, or a qualified technician, chemist, registered nurse, or other qualified person, at the choosing and expense of the person to be tested, administer a test in addition to any administered at the direction of a law enforcement officer.”
It is a commonly known biological fact that the amount of alcohol in your bloodstream, which is determinant of intoxication and hence of your guilt or innocence on any Missouri DWI charge, is soon dissipated by your body’s natural processes.
Thus, an objective test of sobriety, to be probative, must be administered as quickly as possible after the initial arrest.
The first thing that I would point out to Missouri drivers is you must immediately be aware of the fact that you do not get a choice on which chemical test to take if you are arrested for DWI in Missouri.
If the police initially request a breath test, you must take the breath test. If they initially request a blood test, you must take a blood test. The police also have the right to request any two chemical tests they choose, and you do not have the right to refuse either test if two are requested, or you will be deemed to have refused, and face having your driver’s license suspended, even if you took one of the two requested chemical tests. This is not to say in certain cases that you should not refuse any chemical test. Know your rights!
If you have been arrested for DWI, and the officer asks you to take a breath test after reading you a proper implied consent warning and you refuse this test by asking for a blood test instead, you will lose your right to the independent test, and you will also be deemed to have “refused” a chemical test by refusing the breath test. Kiso v. King, 691 S.W.2d 374 (Mo. App. W.D. 1985); State v. Brown, 804 S.W.2d 396 (Mo. App. 1991) (If the officer requests one type of test and the subject refuses, but volunteers to take another type of test, the subject’s conduct still constitutes a refusal).
In short, to preserve your right to an independent chemical test in a Missouri DWI case, you must first submit to the chemical test requested by the officer, and then ask for your independent test (preferably a blood test).
You need to realize that the Implied Consent warning that is read to you by the police when you are arrested for DWI which advises you of your rights to take or refuse a chemical test does not provide any information about the right to an independent chemical test.
If you do not know your rights, and do not know to ask for an independent blood test after you have blown for the police they do not have to advise you of your rights or give you the blood test! Know your rights!
You should also be aware that there is hardly any caselaw interpreting this independent chemical test provision in the Missouri statute regarding requirements the police have to follow when you request an independent test. The statute also further states that: “The failure or inability to obtain an additional test by a person shall not preclude the admission of evidence relating to the test taken at the direction of a law enforcement officer.”
The only Missouri case on point at the time of this writing is Pierce v. Director of Revenue, 51 S.W.3d 888 (Mo. App. W.D. 2001).
In that case, the driver wanted to have a blood test instead of the breath test that the police requested after he was arrested for DWI. He went ahead and took the breath test requested by the police and tested above the legal limit, but then continued to request a separate blood test. The police did not provide him his requested independent test, but they did released him 45 minutes later. The court in the Pierce case held that releasing him in a timely fashion did not deny him an independent chemical test, nor did it deny him getting a independent chemical test on his own.
POLICE DEPARTMENT POLICIES REGARDING “MANDATORY HOLDS” IN MISSOURI DWI CASES
While the Pierce case seems to indicate that if the police release you in a timely manner, you have to go get an independent test yourself or you waive the right, many police departments in Missouri DWI cases have a policy of a “mandatory hold” in all DWI cases.
This usually means that if someone is arrested for DWI, the person will be held for a set number of hours if there is a mandatory hold policy in place by that police department.
The imposition by the police of a mandatory hold policy on you when you have requested an independent blood test after submitting to the requested police breath test clearly imposes a material obstacle in the path of your ability to obtain an additional test of your blood or breath, thereby denying your statutory right under RSMo. 577.020 to an additional test.
The admissibility of breath tests in Missouri is conditioned upon the requirement that the tests “shall” be performed in compliance with section 577.020 to 577.041. Reed v. Director of Revenue, 184 S.W.3d 564 (Mo. 2006). A failure to comply with the provisions of sections 577.020 to 577.041 means that the chemical analysis of the police test you consented to is not admissible in civil proceedings to suspend or revoke a driver’s license. Reed, supra.
In addition, you have a constitutionally protected property interest in your driver’s license and its deprivation or suspension by the government implicates the Due Process Clause. As the Missouri Supreme Court recognized in Dabin v. Director of Revenue, 9 S.W.3d 610 (Mo. 2000):
“Procedural due process imposes constraints on governmental decisions which deprive individuals of ‘liberty’ or ‘property’ interests within the meaning of the Due Process Clause of the Fifth or Fourteenth Amendment.” Mathews v. Eldridge, 424 U.S. 319, 332, 47 L. Ed. 2d 18, 96 S. Ct. 893 (1976).
Due process applies to the suspension or revocation of a driver’s license by the state. “Licenses are not to be taken away without that procedural due process required by the Fourteenth Amendment.” Dixon v. Love, 431 U.S. 105, 112, 52 L. Ed. 2d 172, 97 S. Ct. 1723 (1971). Id. at 614.
Your right of due process under Article I, Section 10 of the Missouri Constitution, and under the 14th Amendment to the United States Constitution, is denied if you are placed in a mandatory hold after properly invoking the right to an independent blood test after submitting to a police chemical test when arrested for DWI.
The purpose of due process is to prevent fundamental unfairness, and one of its essential elements is the opportunity to defend. Due process of law applies to actions by the government to suspend your drivers license. Dabin, supra.
While there are no published decisions in Missouri on this issue besides Pierce, if you are placed in a mandatory hold after complying with the requirements of the statute in requesting an independent blood test, you should still be allowed at least the use of a phone to attempt to arrange for someone to come administer the independent test while you are in custody. This means a meaningful opportunity to get the test, and not less, to comply with due process.
Despite Missouri not yet having cases on point for this issue, there is respectable authority in other states for the proposition that you are deprived of due process of law when you are denied a reasonable opportunity, under such circumstances, to obtain an additional blood or breath test at his own expense. See People v. Burton, 163 N.W.2d 823 (Michigan 1968); State v. Munsey, 127 A. 2d 79 (Maine 1956); In re Newbern, 175 Cal App 2d 862 (Cal. 1959); and In re Koehne, 356 P.2d 179 ( Cal. 1960).
To the same effect, see In re Martin, 374 P2d 801, 803 (Cal. 1962), in which the court declared:
“But in no event can duly constituted authority hamper or interfere with efforts on the part of an accused to obtain a sampling of his blood, without denying to him due process of law. We are persuaded to such conclusion in any instance where the conduct of the authorities, whether through affirmative action or by the imposition of their rules and regulations, imposes any material obstacle in the path of the accused. It is sufficient if, in seeking to establish the fact of the alcoholic content of his blood, the authorities, by their actions or regulations, frustrate his reasonable efforts designed to produce probative evidence.” Id. Accord, see State v. Snipes, 478 S.W.2d 299 (Mo. 1972).
Under such circumstances, a qualified Missouri DWI attorney should object to the admission of the police chemical test into evidence on the grounds that the actions of the police, combined with the policies of the police department or the local judge in imposing a mandatory hold policy that denies the statutory right to an independent chemical test when properly requested, serves to deny your right of due process under Article I, Section 10 of the Missouri Constitution, and under the 14th Amendment to the United States Constitution.