News & Wins

Commercial Driver’s License and Job saved after 0.147 breath test

By Denise L. Childress

65 year old truck driver stopped in non-commercial vehicle for speeding 51/35 and crossing lane divider lines multiple times, failed three sobriety tests, and had a post-arrest BrAC level of .147. Officer reported the strong odor of intoxicants, admission to drinking a “moderate amount” of alcohol, watery, bloodshot, glassy eyes, slurred speech, use of door to exit vehicle, staggering, and leaning against car as evidence of intoxication. During the interview at the station, the officer claimed that client admitted to being under the influence and use of marijuana prior to the stop.

RESULT: Administrative alcohol license suspension and CDL disqualification set aside. CDL and job saved.

How did we do it? Mr. Ward subpoenaed the arresting officer to appear at the administrative hearing. There, Mr. Ward challenged the officer’s probable cause to arrest the client for DWI, the first issue that the DOR must establish in order to suspend or revoke a driver’s license. In examining the existence of probable cause, the hearing officer may only consider information possessed by the officer before the arrest and the reasonable inferences drawn there from. Therefore, the breath test reading of .147 and statements by the driver at the station were not admissible to establish probable cause. Through cross-examination, Mr. Ward was able to establish that the officer had improperly administered all of the field sobriety tests. Why does that matter? After many years of work, Mr. Ward finally convinced the Appellate Court for the Eastern District of Missouri in in Brown v. Director of Revenue, 85 S.W. 3d 1 (Mo. 2002), as well as the Missouri Supreme Court, in Paty v. Dir. of Revenue, 168 S.W.3d 625 (Mo. App. E.D. 2005) and York v. Dir. of Revenue, 186 S.W.3d 267 (Mo. 2006), to recognize for the first time that police officers should know how to properly administer, interpret and score the field sobriety tests, that they should not rely upon the results of improperly administered tests when determining probable cause, and that, for those reasons, a hearing officer or judge may disregard an officer’s testimony concerning the sobriety test results when they do not follow the proper procedures.

Pointed to this case law established by Mr. Ward through his previously successful wins, the Court did not consider the officer’s testimony in this case about the tests because they were improperly administered, as established by Mr. Ward on cross examination. Finally, by cross-examining the officer, Mr. Ward also revealed serious inconsistencies in the officer’s testimony concerning the events leading up to the client’s stop and arrest, so that the hearing officer found that the officer was not credible. Without the officer being required to appear for the hearing, the arrest report would have been admitted into evidence, and the hearing officer would have simply assumed that the tests were properly administered and that the matters stated in the report were true.

NOTE: The choice of a lawyer is an important decision and should not be based solely on advertisements. Past results afford no guarantee of future results. Every case must be judged on its own merits.

Donate to support John Brunner