Joplin MO Criminal Defense Lawyer Blog

Case Law Update - Commercial Drivers' License

Recently the Eastern District of the Missouri Court of Appeals decided that sections 302.700 through 302.755, RSMo, do not violate the Missouri Constitution's prohibition on retrospective application of a law.  In Pearson v. Director of Revenue, Pearson, who held a commercial drivers' license, was convicted in Illinois in 2002 of driving while his license was suspended or revoked. He was driving a commercial vehicle at the time.   In December of 2005 Pearson received a notice from the Missouri Department of Revenue notifying him that because of his 2002 conviction of driving while license suspended or revoked, he would have his commercial license suspended for 1 year.  Pearson filed a petition for review and the trial court reinstated his license because sections 302.700 through 302.755 did not go into effect until September 30, 2005 and was not a disqualifying event at the time the conviction arose.  The Director of Revenue appealed the trial court's decision.

Article I, Section 13 of the Missouri Constitution prohibits the enactment of any law that is retrospective in its operation.  Laws that create a new obligation, imposes a new duty, or attaches a new disability with respect to transactions or considerations already past are retrospective in operation.  Because a drivers' license is not a vested right but a privilege, the statutes do not take away a vested right.

The Eastern District reversed and remanded the trial court's decision to reinstate Pearson's license.  It found the the sections applicable in Pearson's case, did not create any new duties on Pearson, only used his past conduct to determine future decision-making by the Department of Revenue.

This is another example of how your past conduct can come up to haunt you in your future. 

Source:  Pearson v. Director of Revenue, ED88625, 07/10/2007.

Case Review - Commercial Driver's License Not Eligible for Expungement of Alcohol-Related Conviction

Any person who has been issued a commercial driver's license is ineligible to have an expungement of an alcohol-related driving offense pursuant to section 577.054.  This statute allows for a person convicted of an alcohol-related driving offense, first offense, to have the record expunged after ten years if the person has not been convicted of any other offenses during that time.   However, subsection 2 of the statute states that the expungement shall not apply to a person who "has been issued" a commercial driver's license.  In State v. Owen, the defendant received a conviction of driving with excessive blood alcohol content on August 21, 1981.  This offense did not involve a commercial vehicle and the defendant did not receive any other convictions.  After ten years he filed a petition to have the record expunged.  The Director of Revenue objected because the defendant had been issued a commercial driver's license and had only surrendered it right before the petition had been filed.  The Director contended that this made the defendant ineligible to have his record expunged.  The defendant contended that because he did not have a commercial driver's license at the time he filed the petition, he was eligible for the expungement.  The trial court and the appellate court agreed with the Director of Revenue's interpretation of the statute and the defendant's record was not expunged.

Source:  State v. Owen, WD66655, (Mo. App. W.D., 03/06/2007)

Case Review- DWI - Not Enough Evidence

On March 20, 2005 the respondent in Fick v. Director of Revenue was involved in a single-vehicle crash.  A trooper came to the site and saw the respondent being treated by medical attendants.  The trooper walked over to the respondent, who had an oxygen mask and neck collar on, and smelled a moderate odor of alcohol on the respondent.  The respondent admitted to having a few beers so the trooper administered a partial horizontal gaze nystagmus test on the respondent's left eye.  The trooper noticed a lack of smooth pursuit and nystagmus at maximum deviation.  The trooper was not able to perform the test on the right eye or any other physical tests due to the medical treatment the respondent was receiving.  The respondent was placed under arrest by the trooper and was asked to submit to a blood test.  The respondent refused.  The trooper did not give the respondent the written notice that his driving privileges were revoked for one year but sent the notice to the Department of Revenue with instruction to mail it to the respondent.  The Director revoked the respondent's driver's license for refusing to submit to the blood test.  The respondent requested a hearing before the trial court wherein the trial court ruled in favor of the respondent and ordered to Director to reinstate the respondent's driver's license.  The Director appealed to the appellate court on the grounds that uncontroverted evidence was presented that the respondent had been driving while intoxicated.    The appellate court ruled that at the trial court hearing the Director had to prove by  a preponderance of the evidence all of the following elements:

1. the driver was arrested;
2. the arresting officer had reasonable grounds to believe the driver was driving while intoxicated; and
3. the driver refused to submit to a test as authorized by section 577.020 to determine the amount of alcohol in the blood.

If any one of the three elements are found in the negative, the trial court must order reinstatement of the driving privileges.  Based upon the rulings in York v. Director of Revenue, 186 S.W.3d 267 (Mo. banc 2006) and Guhr v. Director of Revenue, WD657621, (Mo. App. W.D. 08/26/2006), now on transfer to the Missouri Supreme Court, the trial court is free to disregard any and all of the Director's evidence, even if it is uncontroverted, and if the appellate court finds that one or more of the elements could be found in the negative, it must affirm the trial court's ruling.  Here, the trial court found all three elements to be in the negative and  based this decision on the following:  the trooper gave the gaze nystagmus test wherein the respondent failed 2 0f the 3 parts and did not complete the test with the right eye or conduct any other physical tests, the trooper testified that he did not remember any other person being arrested for driving while intoxicated under such limited testing, the "field of debris" did not show clear evidence  of alcohol consumption, and there were no alphabet or other mental dexterity testing conducted. The trial court found that there were not enough grounds to conclude that the respondent was driving while intoxicated based upon this evidence.  The appellate court determined that the evidence could be interpreted this way so it affirmed the trial court's ruling against the Director.

Case Review - Illegal Stop for DWI

The Missouri Court of Appeals, Western District, recently threw out a DWI conviction  because the the evidence of the intoxication was inadmissible as "fruit of the poisonous tree."  The defendant was initially observed by a municipal officer swerving his pickup truck while in the city limits.  However, the officer waited until the defendant had crossed the city-limit line before activating his stop lights and pulling the defendant over.  The officer then had the defendant wait in his patrol car until a state trooper could arrive at the scene to complete the arrest.  The trial court denied the defendant's motion to suppress the evidence based upon an unlawful stop and the defendant was convicted  of the DWI.  Upon appeal the appellate court found that the stop by the municipal officer was unlawful because it was outside of his jurisdiction and he was not in fresh pursuit.  The question then became whether this tainted the evidence collected by the state trooper.  The court stated that there are three doctrines used to determine whether there are "means sufficiently distinguishable to be purged of the primary taint" and they are:  (1) the temporal proximity of the illegality and the unlawful activity; (2) the presence of intervening circumstances; and (3) the purpose and flagrancy of the official misconduct.   The court then overruled prior case law in State v. Neher, 726 S.W.2d 363 (Mo. App. W.D. 1987), which was directly on point, and stated that the independent source rule must be carefully examined in order the prevent it from becoming an "illusory source requirement." After examination, the court found that the evidence in this case did not meet the requirement that it was obtained from a source "separate and distinct" from the initial unlawful stop and that there was no exception  to the fruit of the poisonous tree doctrine in this case.  The appellate court reversed the ruling and remanded the case back to the trial court to sustain the motion to suppress.

Source:  State v. Renfrow, WD66102, (Mo. App. W.D. 02/27/2007).