A Missouri Western District appellate court recently ruled in favor of a driver charged with a DWI. Basically it said law enforcement use of evidence of the smell of intoxicants from Defendant’s breath and observing the driver’s bloodshot eyes was insufficient in of itself to show intoxication.

In this case, Defendant was pulled over by a state trooper for expired tags, not because of erratic driving. Defendant refused to blow. Defendant is appealing the circuit court’s judgment affirming the Director of Revenue’s decision to revoke his driving privilege for one year for refusing to take a chemical test pursuant to Section 302.574.

The defendant contends that the circuit court’s finding that there were reasonable grounds to believe the defendant was driving a motor vehicle in an intoxicated or drugged condition was not supported by substantial evidence.

The appellate court said that after reviewing the record, there was no indicia of intoxication present at the time of Defendant’s arrest to support a finding of probable cause for that arrest. Trooper testified at trial that he was concerned that Defendant was intoxicated due to “the odor of intoxicants and then the bloodshot eyes and he admitted to drinking prior to the stop.” The Trooper testified that “I believed that he was under the influence, too impaired to drive.” However, he also testified that the only evidence of impairment was the smell of alcohol and Defendant’s bloodshot eyes. Defendant told Trooper that his bloodshot eyes were due to being tired. Although Defendant had admitted to drinking, his reported last drink was fifteen hours prior to the stop.

The State Trooper’s following testimony of what he observed failed to establish intoxication:
• Observed no other evidence of intoxication from Rocha’s eyes; he observed no glassy eyes, staring eyes, constricted pupils, slow reaction to light, dilated pupils, or anything else that Cool was trained to look for as evidence of intoxication.
• Observed no gross motor movements that would suggest impairment.
• Observed no signs of uncertain balance, swaying, staggering, stumbling, or falling.
• Trooper followed Defendant for almost two miles before stopping Defendant, and during that time he observed nothing about Defendant’s driving that would indicate impairment.
• Observed that when Trooper’s emergency lights went on, Defendant stopped almost immediately.
• Observed no verbal indicators of impairment such as slurred speech, confusion, incoherency, stuttering, or mumbling.
• Observed nothing about Rocha’s clothing or footwear indicated impairment, and Rocha exhibited no unusual behaviors.
• Observed that Defendant recited the alphabet correctly.

The appellate court reversed the lower court and remanded the case. The case was Carlos Rocha v. Department of Revenue. The case was heard before Division Four Judges: Judge Mark D. Pfeiffer; Presiding Judge, Gary D. Witt; and Judge, Anthony Rex Gabbert.