Previously I posted about the legal pros and cons of submitting to a breathalyzer test (See: DWI: The Breathalyzer). The purpose of this post is to concentrate on the types of things that the Department of Revenue (“DOR”) needs to show to move to suspend a driver’s license.
Under Missouri law, for the DOR to make a submissible case for the suspension of a driver’s license it must establish that there was probable cause to (1) arrest the driver for DWI; and (2) to believe that, at the time of the arrest, the driver’s BAC was at least eight-hundreths of one percent or more by weight. When is there probable cause to execute an arrest for DWI? It’s a flexible standard in Missouri: “Probable cause exists when the facts and circumstances would warrant a person of reasonable caution to believe that an offense has been or is being committed.'” Whitworth v. Director of Revenue. The standard, then, is very much deferential to the skills, observations, and prudence of a police officer. As for showing the BAC level, deference is again given to a police officer’s observations. Were the individual’s motor skills impaired? Smell like alcohol? Glassy eyes? Slurred speech? In many cases, though, a breath test has been administered. In such cases, the DOR has to prove that the test was administered properly.
More specifically, the DOR (1) that a maintenance check had recently been performed on the breath machine; (2) that the test was performed by following Department of Health approved techniques and methods; (3) that the operator holds a valid permit; and (4) that the equipment and devices used were approved by the Department of Health.
Supposing that the DOR is able to make all of these showing by a preponderance of the evidence, the case is still not over. A defendant has the opportunity to rebut this evidence and defeat the prima facie case. The rebuttals, however, must be “material” counter-points which raise questions about the validity of the DOR’s showing. Pointing out mere “inconsistencies” about the procedures or circumstances generally does not work. To give an example of a “material” counter-point, evidence that a defendant had vomited prior to the test or that the machine used was not calibrated correctly would be good evidence to use on rebuttal.
Remember that the foregoing only applies to the civil license suspension/revocation aspect of a DWI. It does not cover the criminal prosecution of the case. And remember also that the foregoing is not comprehensive; rather, it just highlights some of the more important issues present when the DOR moves to suspend a driver’s license.