Tag Archives: DWI

Literal compliance with filing rules for Breathalyzer unnecessary

August 24, 2018

A recent Eastern District of Missouri appellate decision appears to be pro-law enforcement.

The trial court concluded the blood alcohol content results were inadmissible because the officer had not filed a copy of the maintenance report of the breathalyzer with the DHSS, as it is required under 19 CSR 25-30.031(3). The breathalyzer determines whether someone exceeded the allowed drinking amount by taking the person’s blood alcohol content (BAC). The trial court thereby reinstated the driving privileges of a man in St. Charles County. The Department of Revenue then appealed the decision.

The appellate court reversed and remanded, stating that the trial court was in error, and that absolute and literal compliance with the filing requirement in that regulation is not required because it was a collateral issue that did not affect the performance or validity of the breath test. As a maintenance report was done, the fact that it wasn’t filed with the DHSS was ancillary.

The case was Gerald R. Roam v. Department of Revenue. The opinion was written by Judge Robert G. Dowd, Jr.. Judges J. Philip J. Hess, P.J. and Mary K. Hoff, J., concurred. The attorney for the Appellant was Morgan Brewington, and attorney for Respondent was Robert S. Adler.

The court wrote: “In spite of the established case law, Roam insists that the Director must demonstrate “absolute and literal compliance” with this DHSS regulation before the BAC results can be admitted into evidence, and the trial court seems to have agreed. Besides being in conflict with the above law, our courts have specifically rejected this proposition as well. In Potts v. State, the court held instead that the Director must only demonstrate absolute and literal compliance with those regulations “governing the actual performance” of the maintenance check and not with those regulations “governing collateral issues which do not affect the actual performance or validity of the test itself.” 22 S.W.3d 226, 230 (Mo. App. W.D. 2000) (emphasis added). Potts determined that the requirement for filing a copy of the maintenance report with DHSS is a collateral issue that does not affect the performance or validity of the breath test. Id. at 231. Roam has failed to adequately address, much less distinguish, Turcotte, Potts or any of the above precedent. Instead, he stated in his brief that the trial court had Turcotte before it, knew the law and is presumed to have followed it. But clearly the court did not follow the law. It was error not to admit the BAC results on the ground that the maintenance report had not been filed with DHSS. Therefore, we must reverse and remand.”

A call to put teeth back into enforcing traffic violations

August 1, 2018

Did the 2015 municipal court reforms for traffic violations go too far?

That is the subject of a great editorial by the Kansas City Star a few weeks ago talking about how too many people with traffic tickets are not paying their fines and are getting away with it. Since the state-wide municipal court reform after the Ferguson uprising, there doesn’t seem to be any punishment for not paying fines and not showing up to court.

In many communities, traffic violators have figured out that they don’t need to show up to court because the effective tools of punishment such as higher fines, warrants for not showing up to court, or suspending a person’s license is not an option.

Maximum fines were lowered from $500 to $225. Many cities coffers are severely depleted and are finding it difficult to impossible to enforce law violators without an adequate budget. This has also carried over to enforcement of residential nuisance ordinances that are designed to keep housing safe, particularly with abandoned properties.

For example, one person who didn’t show up to court in a town near Kansas City had been arrested four times for a $450 ticket from 2015 for driving with no insurance and driving with a suspended license. She still hasn’t paid, and likely never will.

One judge was quoted as saying, “These people just continue to drive, except they don’t drive to court.”

One state senator tried to pass a bill to put some teeth back into law enforcement. His idea was that if a citizen fails to show up for a court date, a judge could order community service, issue a civil fine or put a hold on a driver’s license.

The editorial calls for Missouri to revisit its 2015 reforms with the goal of restoring some authority to its municipal courts to better find a balance between being overbearing on constituency and effectively punishing and enforcing our traffic laws. Because as the editorial states, “As of now, they’ve been effectively defanged.”

Out-of-state DWI’s can be used to elevate a DWI to a felony

July 23, 2018

Interesting case here from the Missouri Court of Appeals, Southern District. It is a good example of how the court analyzes out of state DWI related convictions to determine whether they are the equivalent of a Missouri DWI conviction. This is important when it comes to using the out of state DWI convictions to charge an individual with a higher charge under the Chronic Offender statute.

In Missouri, four prior of intoxication-related traffic offenses (“IRTOs”) means the state can charge you with chronic offender status, thereby making it a felony a Class B felony.

The Prosecution admitted evidence of six previous occasions of IRTOs from Arkansas. Defendant appeals the admission of four of these previous IRTOs.

The court found two of the underlying charges to be distinguishable from the ruling in the case of State v. Coday, 496 S.W.3d 572 (Mo. App. 2016), which did not find IRTO convictions in Kansas, because they failed to meet Missouri’s evidentiary standards for a DWI. Kansas Law punishes persons operating or attempting to operate a motor vehicle while intoxicated. In order to use an IRTO out of Kansas, there must be evidence that the individual was convicted of operating a motor vehicle as required for a Missouri DWI.

In this case, two of the underlying charges were municipal ordinance violations. The record did not provide the wording of these municipal ordinance. The court held: “Moreover, “a judgment that, on its face, shows a guilty plea or a finding of guilt of an [IRTO] can be treated as a prior conviction for purposes of enhancement under § 577.023.” Craig, 287 S.W.3d at 681–82 . . . Stated another way, we cannot say here that it was unreasonable for the trial court to infer that a conviction for “driving while intoxicated” was a conviction for driving while intoxicated.”

While, two of the proffered charges may have been thrown out following the ruling in Coday as the statute provided for operate or be in physical control. The court already had 4 prior IRTOs so it declined to make a decision.

Bottom line, if you have previous DWIs in another state, make sure you present the wording of the statute or ordinance in order to exclude the IRTOs as not complying with Missouri Law.

Overturned DWI based on time between accident/blood drawn

June 18, 2018

A recent Missouri Western District Court of Appeals decision says a guilty verdict failed to prove beyond a reasonable doubt that a driver was drunk at the time of the accident.
The appellate court essentially determined that too much time had transpired between an accident and when blood was drawn. That fact, plus that there was no evidence that the man had been driving his vehicle when it was driven off the road or evidence of when he became intoxicated led them to overturn the trial court.

The man was clearly drunk according to witnesses but they never observed him driving his vehicle or drinking. Witnesses drove him home and later went back to the scene and called the police. Police found empty beer cans in the vehicle and went to visit the man at his home. He clearly was intoxicated and could not stand to perform a walk and turn field sobriety test.

He was arrested at 11:40 p.m. and transported to the hospital due to concerns about the level of alcohol in his system. He refused to provide a blood sample. A warrant to draw blood sample was obtained and blood was drawn at 2:47 a.m. The test determined that his blood alcohol level was .129 at that time. The man was found guilty during a bench trial for DWI.

The Western District reversed the trial judge. They held that while the State established that he was intoxicated at the time he was first observed by witness, there was no evidence as to when the accident occurred, when the man last consumed alcohol or when he became intoxicated. The trial court erred in convicting him of driving while intoxicated because the State failed to prove beyond a reasonable doubt that he operated a vehicle while intoxicated.

The court discussed the timing of the accident and the time blood was drawn to prove intoxication: “Wilhite raises one point on appeal. In his sole point on appeal, Wilhite argues that there is insufficient evidence to convict him of driving while intoxicated because the evidence failed to establish a temporal connection between Wilhite’s alleged operation of a motor vehicle and his intoxication.

“The offense of driving while intoxicated, section 577.010.1, requires proof of two elements: (1) that the defendant operated a motor vehicle, and (2) was intoxicated while doing so.” State v. Ollison, 236 S.W.3d 66, 68 (Mo. App. W.D. 2007).

Wilhite begins by arguing that there was insufficient evidence to prove that he operated a motor vehicle because no one witnessed him actually driving the truck.
However, Wilhite was the only one at the accident scene on the side of a rural roadway and told Tracy that he was the only one in the vehicle. Based on these facts, the trial court could have reasonably inferred he was operating the truck at the time of the accident. There was sufficient circumstantial evidence to establish that he operated the vehicle. See State v. Besendorfer, 439 S.W.3d 831, 836-37 (Mo. App. W.D. 2014)(holding that circumstantial evidence, including Besendorfer admitting he was the only person in the truck when he was found, was sufficient evidence for “a reasonable trier of fact to find beyond a reasonable doubt that Besendorfer had ‘operated’ his vehicle.”).

Wilhite then argues that there was insufficient evidence that he was intoxicated at the time he was operating the truck. “Proof of intoxication at the time of arrest, when remote from the operation of the vehicle, is insufficient in itself to prove intoxication at the
time the person was driving.” Ollison, 236 S.W.3d at 68. “In this remote circumstance, ‘time [is] an element of importance’ that the State must establish to meet its burden of proving the defendant drove while intoxicated.” State v. Davis, 217 S.W.3d 358, 360 (Mo. App. W.D. 2007) (quoting State v. Dodson, 496 S.W.2d 272, 274 (Mo. App. W.D. 1973).
“‘Remoteness’, as used in drunk driving cases, has two dimensions: remoteness in time from operating a vehicle, and remoteness in distance from the vehicle.” State v. Varnell, 316 S.W.3d 510, 514 (Mo. App. W.D. 2010).

When the defendant is arrested at a remote time from the operation of the vehicle, the State must show further evidence than a test that reveals the defendant was intoxicated at the time of arrest. State v. Wilson, 273 S.W.3d 80, 82 (Mo. App. W.D. 2008). “There are two rationales for this requirement, but both have the same foundation: the longer the interval between driving and testing, the less accurately the test reflects the state of the driver at the time of the arrest.” Varnell, 316 S.W.3d at 514.

The first reason that an extended time period between driving and testing can result in an inaccurate test is that the defendant may have had time and opportunity to drink alcohol after he ceased driving. Id. The second rationale for requiring additional evidence is based on the manner in which alcohol is processed by the human body. Id. One does not become intoxicated immediately upon the ingestion of alcohol. Davis, 217 S.W.3d at 361. “[A]lcohol must be absorbed into the bloodstream before it affects a person, and it can take thirty to ninety minutes before the maximum blood alcohol level is reached.”
Varnell, 316 S.W.3d at 514. “[I]t is theoretically possible for a driver who quickly ingests alcohol immediately prior to taking a short drive to be in a sober condition when driving, but, due to process of absorption of alcohol into the bloodstream, to exceed the limit afterwards.” Id.

In this case, Wilhite was dropped off at his trailer at approximately 10:30 p.m. and was first contacted by Trooper Johnson at approximately 11:30 p.m. For this at least one hour there was no testimony as to Wilhite’s actions or his access to alcohol. Ward was present in the trailer for at least a portion of that time and testified at trial, but the State never inquired as to whether or not Wilhite had access to or consumed any alcohol during that time period. Wilhite was at home for a significant amount of time, giving him ample opportunity to consume alcohol after he drove the truck but prior to his first contact with Trooper Johnson and getting his blood drawn at least three hours later. There was no evidence to establish a correlation between the blood alcohol content reflected in the blood test result and Wilhite’s blood alcohol content at the unknown time he last operated the vehicle. However, the lack of a correlation between the test result and the operation of the vehicle is not dispositive of the issues in this case.”

The case, WD80701, originated in Boone County and the appeal was heard before Division Three Judges Victor C. Howard (Presiding Judge), Cynthia L. Martin, and Gary D. Witt. The opinion was written by Judge Witt, June 5, 2018.

Cities causing home owners to make up for traffic ticket revenue drops

June 4, 2018

Drivers are no longer the only people that need to watch out for overzealous small cities seeking to raise money instead of raising taxes. Now homeowners are being aggressively targeted to pay fines related to housing violations.

Apparently, the use of traffic violations is not the only way small cities are raising money to run their towns. A recent trend, especially in the St. Louis region since the post-Ferguson Court Reform that capped the amount of revenue raised from traffic tickets, is for cities to pursue neighborhood ordinance nuisance violations.

What we saw in the St. Louis metro area since post Ferguson also takes place around the country. New stats compiled shows that many cities are using these tactics to raise money and that several St. Louis area municipals remain among the top practitioners.

Cash-strapped towns and cities across the nation don’t want to raise taxes to pay the costs of running their cities. Instead, they are using their nuisance laws — with fines and fees for minor traffic violations and violations of local housing codes — to balance their budgets.

For example, in Mountain View, Colorado – a town of around 500 people — made $621,099 in citation revenue in 2013, almost half its annual budget. Several other small Colorado towns in 2015 made more than 30 percent of their revenue from issuing traffic tickets.

The Institute for Justice has filed lawsuits around the country taking on these practices. One lawsuit in Pagedale, Missouri (a town of 3,300), notes that some 1,336 tickets were issued to 896 individuals for housing violations between a seven-year period (January 2010-September 2017). That would mean 39 percent of the city’s adult population was cited.

Violations could include failure to “neatly” hang drapes or curtains; small tears in screen doors; hosting a barbecue in front yards; failure to keep beer away from the grill; etc. A consent decree was negotiated recently that settles the case. The settlement includes reforms on how the City identifies, tickets, and tries those accused of violating its municipal code.

Below is a list of several jurisdictions that heavily rely upon the use of fines and fees to raise revenues. Many of this are right here in Missouri. Statistics were gathered from a 2012 analysis of cities by the U.S. Commission on Civil Rights, 2017. Here’s an excellent article on that best explains and breaks down this trend towards taxation by ticket.

Dependent Cities using fines and fees to raise revenue
CITY STATE FINES AS PERCENT OF REVENUE

Saint Ann Missouri 30.40%
North Hills New York 25.60%
Clarkston Georgia 24.40%
Morrow Georgia 22.70%
Stone Mountain Georgia 22.10%
Doraville Georgia 20.60%
Cedarhurst New York 18.80%
Riverdale Georgie 18.70%
St. Johns Missouri 18.00%
Willow Springs Illinois 17.10%
Great Neck Plaza New York 15.80%
Riverdale Dark Maryland 15.70%
Sunset Utah 14.50%
Oakland Tennessee 14.50%
Bellafontaine Neighbors Missouri 14.40%
Millersville Tennessee 14%
College Park Maryland 13.60%
Ferguson Missouri 12.90%
Lake Dallas Texas 12.80%
Maryland Heights Missouri 12.60%
Snellville Georgia 12.40%
Gretna Louisiana 12.20%
Dardenne Prairie Missouri 11.90%
Laurel Maryland 11.80% $66,355 7.80% 29.50%
Los Fresnos Texas 11.50% $39,149 33.10% 1.20%
U.S. AVERAGE 1.40% $54,651 15.60% 78.30%

MO flunks traffic safety: texting, open container laws cited

March 8, 2018

Missouri needs to evaluate its traffic safety laws. A recent report by a coalition of safety and health groups rated Missouri’s traffic laws towards the bottom of all 50 states.

According to Advocates for Highway and Auto Safety (AHAS), a Washington D.C. group of health companies, insurance agencies and safety companies that encourages the enactment of federal and state laws, the state of Missouri tied for fourth worst in the nation when it comes to safety laws.

The low grading stems from Missouri’s legal code only containing four of the 16 laws the AHAS considers essential for driving and safety.

OPEN CONTAINER LAWS

The AHAS dings Missouri for its open container laws. The state is one of only six states without a statewide open container law. Strict open container laws are said to be helping other states reduce fatal auto accidents.

Although St. Louis and Kansas City do not have ordinances for open containers, the City of Maryville is one of the few that has passed its own. But Maryville does not have a primary seatbelt law.

PRIMARY SEATBELT LAWS

Missouri is one of only 15 states without a primary seatbelt law that would give law enforcement power to stop drivers for simply not wearing a seatbelt. Data suggests that 81 percent of the state’s residents use seatbelts, which is actually 7 percent lower than the national average.

DISTRACTED DRIVING

The state was also marked down for its laws on distracted driving, such as texting. Although the state bans texting for those 21 and younger, safety advocates say it needs to be broader. Word has it that the state may soon be expanding its anti-texting and driving laws to all drivers, not just those 21 and younger.

CAR SEATS

Missouri was also criticized for its age requirements for infants in rear-facing car seats. The American Academy of Pediatrics says infants and toddlers need to sit in a rear-facing seat until they are at least two-years-old, or until an infant meets the manufacturer’s height and weight restrictions. However, state law only requires rear facing seats until the infant is a year old and 20 pounds.

FAQs about Missouri’s Chemical Revocation Laws

January 30, 2018

You are driving home from a party. In your rear view mirror you see the red lights and hear the siren of police car pulling you over. The problem is you had a few drinks, but you’re not sure just how much alcohol you have had. Questions race through your mind. Do I blow in a machine that tests my alcohol content?

You are now being arrested for driving while intoxicated. The police officer asks you to submit to a chemical test to determine your blood alcohol content or drug level.

While you have 20 minutes to contact an attorney to ask what to do, sometimes you simply aren’t able to get in touch with an attorney. You are confused on whether to say “Yes” or “No.” If you say, “No,” and refuse to blow, the State of Missouri deems you to have consented to such testing under its “implied consent” law. Again, you have the right to refuse to submit to the test but if you refuse to take the alcohol or drug test, your Missouri driving privilege will be revoked for one year. This is known as a “Chemical Revocation.”

The topic of chemical revocation can be confusing. The Missouri Department of Revenue has a helpful Website that provides a lot of information related to the implied consent law and chemical revocation. Here are a few Q&A’s from the DOR that will help answer some of your questions:

Can I have any type of driving privilege while I am under a Chemical Revocation?

You may be eligible for a Limited Driving Privilege (LDP). The LDP may be used for work, your alcohol program, medical treatment, school, etc. You must install an Ignition Interlock Device (IID) and file an SR-22 form.

Do I need an Ignition Interlock Device (IID) to reinstate my Missouri driving privilege after I have served my 1-year revocation period?

If your driver record shows more than one intoxication-related law enforcement contact, you are required to have an Ignition Interlock Device (IID) installed on any vehicle you operate. You must maintain the device for a minimum period of six months from the reinstatement date. You will be monitored during the last three months of the six-month period. If you have any violations, as determined by the device manufacturer during the monitoring period, your requirement to maintain the device will be extended until you complete a three-consecutive-month period without violation. Violations are defined in 7 CSR 60-2.010 (refer to “violations reset” language).

What is an SR-22 insurance filing?

An SR-22 form is an insurance filing from your insurance company that shows your motor vehicle has liability insurance.

How long do I need the SR-22 insurance filing?

You must file the SR-22 form for two years from the effective date of your Chemical Revocation.

Why do I need to complete a Substance Abuse Traffic Offender Program (SATOP) if I was not convicted (or, I was convicted of a lesser charge)?

If you have an alcohol offense, such as an alcohol or drug revocation on your driver record, the law requires you to complete a SATOP (or comparable course) as a condition of reinstating your driving privilege in Missouri.

Where can I get information about Substance Abuse Traffic Offender Program (SATOP) courses?

Information regarding SATOP courses is available on the Missouri Department of Mental Health, Division of Behavioral Health website. For a SATOP provider near you check out our list of SATOP providers.

How do I appeal the revocation of my driving privilege?

You must petition the Circuit or Associate Circuit Court in the county where the arrest or stop occurred. A petition for review must be filed within 30 days from the date the Notice of Revocation is issued. If the arrest or stop occurred in another state, you must petition the Cole County Circuit Court, in Jefferson City, Missouri.

When will the Chemical Revocation come off my driver record?

A Chemical Revocation (for refusal to submit to an alcohol or drug test) is a permanent part of the record and can never be removed.

Missouri DWI laws and treatment courts

November 21, 2017

Ever wonder about the underlying mechanics of how Missouri’s DWI laws have been put together? For the answer to that question, you need to look at House Bill 1695 that went into effect August 28, 2010.

The bill changed the laws for repeat alcohol offenders and drivers with high blood-alcohol levels. It also affected how a person qualifies for driving privileges. Other changes included the following:

• Creation of a centralized reporting database that tracks all driving-while-impaired offenses, from arrest to disposition.

• Prevents municipal courts from hearing an intoxication-related case if the offender has two or more “intoxicated-related” offenses, or two or more “alcohol-related” offenses.

• DWI courts were established to facilitate treatment for repeat offenders and drivers with high blood-alcohol levels.

• Establishes criteria for qualifying participants and graduates of a DWI court program to obtain a court-ordered limited driving privilege.

• Prohibits a first alcohol-related driving offense from being expunged from a person’s record if the person has another alcohol-related contact on record, or another alcohol-related action pending.

For more information, here is the link to the Department of Revenue to find out more: http://dor.mo.gov/faq/drivers/dwi.php. The DOR website offers a Q&A section that answers many questions you may have. Here are a few:

Can a DWI Court grant me a limited driving privilege when I participate in or graduate from its program, if I have more than one alcohol-related traffic offense on my record?
Yes. Section 302.309.3(9) now allows a DWI Court to grant a limited driving privilege to a participant or graduate of the program who may otherwise be ineligible for limited driving privilege. If you are granted a limited driving privilege by the DWI Court, the Department of Revenue will update your driving record to show the limited driving privilege.

I’ve heard that if my case is in a DWI Court, and I plead guilty to or am found guilty of a first-time driving while intoxicated offense, and my blood alcohol concentration is .15%, I would not be eligible for a suspended imposition of sentence (SIS) for the alcohol-related traffic offense. Is this true?
No. In a county in which there is a DWI court, you may receive an SIS so long as:
•You are placed on probation for a minimum of two years; and
•You successfully complete the DWI court or court-ordered treatment program.
What will the DWI Court program consist of? The program will combine judicial supervision, drug testing, continuous alcohol monitoring, substance abuse traffic offender program compliance, and treatment.

Is there a fee to participate in a DWI court program? A DWI Court may assess you with any and all necessary costs of your participation.

When is the earliest I can be issued a limited driving privilege if I am a participant in or graduate of the program? You must complete a minimum of 45 days of participation in the program and be approved by the DWI Court.

Am I required to have an SR-22 insurance filing if a DWI Court has issued me a limited driving privilege?
Yes. You are required to maintain an SR-22 insurance filing for the duration of your limited driving privilege.

Am I required to have an ignition interlock device in my car if a DWI Court has issued me a limited driving privilege? Yes, if you have more than one alcohol-related enforcement contact.

If I have a first alcohol-related driving offense on my record that is over 10 years old and now I have a new one pending in court, can I have the old alcohol-related offense expunged from my record? No. The new law prohibits the Department of Revenue from expunging the alcohol-related driving offense from your record because you have another alcohol-related offense pending.

Missouri appellate court rules on DWI probable cause standard

September 6, 2017

A recent Missouri Court of Appeals, Western District decision continues to give law enforcement a low burden to show probable cause to pull a DWI suspect over.

The case is Brian Charles Srader v. the Department of Revenue.  Srader was arrested for driving while intoxicated on February 15, 2015.  A breath test was performed on Srader at the police station.  The test showed that he had a blood alcohol content of .122 percent.  The Director of Revenue then suspended his driving privileges. Srader then petitioned the circuit court for a trial de novo with the sole witness being the arresting officer.  After the trial, the court entered its judgment to set aside the suspension of Srader’s driving privileges. The judge had found that the Director’s evidence was credible and that Srader had a BAC level over the legal limit of .08 percent. Despite the strong evidence for intoxication, the judge ruled that the arresting officer lacked probable cause to arrest Srader for an alcohol-related traffic offense.  The Director of Revenue appealed to the court of appeals.

The appellate court reversed and remanded the circuit court’s decision. It held that the evidence which the circuit court found credible also established multiple indicia of intoxication. And these multiple indicia of intoxication was enough to establish probable cause for the arrest.  For example, the officer had seen Srader driving erratically.  And after the stop, the officer stated that Srader’s eyes were watery, glassy, and bloodshot and his speech was slurred.  Furthermore, the officer testified that Srader made inconsistent and suspicious statements about where he was coming from and if he had had anything to drink. Srader also voluntarily submitted to a breath test which showed that alcohol was present.

The court said that these facts when taken together was enough to show to the senses of a reasonably prudent person that Srader had been driving while intoxicated.  The circuit court had erred by concluding that probable cause was lacking in the arrest.

The opinion was written by Judge Alok Ahuja. The other two judges were Cynthia L. Martin and Lisa White Hardwick.  Attorney for the appellant was Rachel M. Jones. Theodore D. Barnes was attorney for respondent.

Foundation requirements for prior convictions in DWI

September 4, 2017

A recent Court of Appeals of Missouri, Western District opinion shows the importance of prosecutors laying a proper evidentiary foundation to introduce evidence of prior convictions in driving while intoxicated cases.

 

In the case of State v. Gary Lee Pylypczuk, following a jury trial in the circuit court of Clay County, Mr. Pylypczuk appealed his conviction of driving while intoxicated.  The DWI was in violation of § 577.010. Pylypczuk argued that the circuit court improperly admitted evidence of his status as a persistent intoxication-related traffic offender because the evidence was not properly authenticated.

 

The court reversed the sentence imposed by the Court and remanded the case for jury sentencing.

 

In its holding, the Appellate Court stated that Section 577.023 does not allow records from the Missouri Uniform Law Enforcement System’s Driving While Intoxicated Tracking System (DWITS) to be admitted to prove a prior conviction in the absence of any foundation.

 

The Appellate Court went on to hold that the State failed to lay an adequate foundation to support admission of evidence of Pylypczuk’s prior convictions, and that without evidence of prior convictions, Pylypczuk could not be sentenced as a persistent intoxication-related traffic offender.

 

The Appellate Court stated in its opinion: “Because Exhibit 2 lacked adequate authentication, it was not admissible and the circuit court erred in admitting it. Furthermore, because Exhibit 2 was used to establish one of the two convictions rendering Pylypczuk a persistent offender, he was prejudiced by the erroneous admission. We, therefore, reverse the finding of the circuit court that Pylypczuk is a persistent offender and the resulting sentence and remand for jury sentencing as a class B misdemeanor offender.”

 

The Special Division Judges were Zel M. Fischer, Special Judge, Presiding, and Karen King

Mitchell and Cynthia L. Martin. Judge King Mitchell wrote the opinion.