DUI Law - Lost Videotape Lets Driver Win in Missouri

In Zahner v. Director of Revenue, State of Missouri, --- S.W.3d ----, 2011 WL 4025275 (Mo.App. W.D.) the defendant was arrested for DUI by an Officer Pierce. He filed for review of his suspension and was given a hearing in the trial court. According to Officer Pierce, Zahner refused to take the test. Zahner maintained that he never refused to take the test, and Zahner claims that Officer Pierce never read him the implied consent warning required by law.

At the hearing, Officer Pierce testified that any confusion over whether he had read the implied consent warning to Zahner and whether Zahner refused the test could be cleared up by a video recording of Zahner's booking at the police station. Notably, the trial court instructed the Director to produce the videotape—strongly suggesting that the trial court was not convinced that Officer Pierce's testimony alone was sufficient to convince the trial court that Zahner had been read the implied consent warning or otherwise refused the breath alcohol test. The trial court continued the hearing so that the videotape could be produced to the trial court for review. A week later, however, counsel for the Director advised the trial court that the videotape had been “destroyed as part of the post arrest routine.”

In its judgment, the trial court noted, in pertinent part:

The Court is also troubled by the officer's assurance that the recordings were available only to be advised one week later that the recordings had been “... destroyed as part of the post arrest routine.” The Court chooses not to infer that the destruction occurred after the officer's assurance.

....

The “policy” here alleged causes the Court to ask, “If the recordings are not preserved for evidentiary purposes then why are they made in the first instance? Are they gleaned to preserve evidence favorable to the arresting agency in support of their cases and the rest purged so as to be unavailable to a party opponent?”

Left without production of the corroborating evidence promised by Officer Pierce, the trial court weighed the credibility of the conflicting evidence and ruled in favor of Zahner, entering judgment requiring that the Director reinstate Zahner's driving privileges.

On appeal, the court wrote as follows:

"Even though the spoliation doctrine may not be applicable to the Director for the conduct of law enforcement officers, this case illustrates the practical dilemma a law enforcement agency faces when it destroys relevant evidence—i.e., the risk that the arresting officer's testimony may not be accorded the credibility that the officer (and the Director) might like for such testimony to receive.^FN3

FN3. When faced with destroyed evidence—but not applying the spoliation doctrine—the trial court is free to “believe all, part or none of the officer's testimony” and is “free to consider the failure to produce the video and audio recordings in its decision.” Douglas v. Dir. of Revenue, 327 S.W.3d 555, 557 n. 3 (Mo.App.S.D .2010).

Ruling in favor of the driver, the court concluded as follows:

"The evidence in this case was hotly contested on numerous disputed facts. But, the trial court did not limit either party's opportunity to present evidence in support of their respective positions. Unlike the Prins and Baldridge cases,^FN5 the trial court permitted the Director to present all evidence in her possession supporting the administrative revocation of Zahner's driving privileges and likewise permitted Zahner to present his rebuttal evidence before the trial court issued its judgment. Further, the trial court included language in its judgment that it was not inferring bad faith in the destruction of the relevant videotape. In fact, the trial court does not even mention the spoliation doctrine in its judgment.^FN6 However, in the trial court's judgment, the trial court notes that it found the destruction of the videotape as “troubling” and “odd” enough such that “under the circumstances of this case,” the trial court refused to believe the Director's evidence supporting administrative revocation of Zahner's driving privileges and instead chose to believe Zahner's rebuttal evidence.^FN7 This is not to say that a different trier of fact could not have concluded differently. The Director made a prima facie evidentiary showing in support of administrative license revocation, and the trial court could have chosen to accept the Director's evidence in support of the revocation of Zahner's license—with or without corroborating video evidence. But, the trial court heard conflicting evidence on the claim that Zahner refused the breath alcohol test and whether Zahner had been properly warned of the Implied Consent Law, and after weighing all of the conflicting evidence, this trier of fact chose to believe Zahner's version of events that he did not refuse the breath alcohol test and that he had not been properly advised of the Implied Consent Law. There is substantial evidence in the record to support the trial court's judgment.

EDITORS NOTE: This case explains a different tactic that can be employed in lieu of seeking sanctions. Rather than forcing a judge to make a politically difficult decision (and one that might not be upheld on appeal) convince the court to simply apply an evidentiary ruling that favors the driver.

Looking for a Top DUI DWI Attorney? Visit Americas Top DUI and DWI Attorneys at http://www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

DWI Law - Missouri Drug Recognition Protocol Opinion Challenged

Modern day courts, often stocked with pro-State judges and former prosecutors, are loath to take on challenges about police procedures. In Missouri v. Savick, --- S.W.3d ----, 2011 WL 3628889 (Mo.App. S.D.) the defendant was convicted of follwing a court ruling allowing an officer to testify that he believed Defendant was under the influence of a central nervous system stimulant, based upon a drug recognition evaluation. On appeal, the court reviewed the DRE protocol:

"A drug recognition evaluation is designed to allow an officer to detect what category of controlled substances may have rendered an individual impaired or intoxicated and is based upon observations of certain characteristics which are known to be exhibited by an individual who is under the influence of a specific category of controlled substances. The evaluation looks for indicators of seven drug categories—entral nervous system depressants, central nervous system stimulants, anesthetic dissociatives, narcotic analgesics, inhalants, cannabis, and hallucinogens—and consists of twelve standardized steps: (1) administer a breath alcohol test; (2) interview the arresting officer; (3) conduct a preliminary examination of the individual to rule out alcohol or medical impairments; (4) administer an HGN test; (5) administer the Romberg balance, walk-and-turn, one-leg stand, and finger-to-nose tests; (6) take the individual's vital signs, including pulse, blood pressure, and temperature; (7) examine the individual's eyes with a penlight in a dark room; (8) examine the inside of the individual's nose and mouth; (9) examine the individual's muscle tone; (10) interview the individual; (11) form an opinion regarding whether the individual is under the influence of a particular category of controlled substances; and (12) request a urine sample for toxicological analysis."

The appellate court avoided the ultimate issue in the case, namely the DRE protocol's validity and reliabiliuty, by finding that ruling on the issue was unnecessary. Here's how they did it:

• First. they re-stated the exact appellate issue written by the defendant:

"The trial court erred and abused its discretion when it permitted Detective Gooden to testify over [Defendant's] foundation objection that it was Gooden's opinion, based on a drug recognition evaluation, that [Defendant] was under the influence of a central nervous system stimulant at the time he was driving, in violation of [Defendant's] rights to due process of law and a fair trial as guaranteed by the Fourteenth Amendment to the United States Constitution and Article I, Sections 10 and 18(a) of the Missouri Constitution. The State failed to demonstrate that the ability to determine intoxication from a specific drug category from a drug recognition evaluation without a toxicology examination was generally accepted in the scientific community, a necessary foundation for expert testimony."

• Second. The appeals court interpreted the issue stated as having only preserved the propriety of the officer's opinion, rather than the entire DRE protocol itself:

"Defendant only challenges Gooden's opinion testimony that Defendant was under the influence of a central nervous system stimulant, or step 11 of the drug recognition evaluation. Our review is limited to those issues raised in an appellant's point relied on and subsequently expounded upon in an appellant's argument. See Rule 84.04(e) as made applicable by Rule 30.06(c); State v. Morrow, 541 S.W.2d 738, 740 (Mo.App.1976). Consequently, the remainder of Gooden's testimony, including his observations during all of the other steps of the drug recognition evaluation, may be considered by this Court as unchallenged and properly before the jury. On that basis, it is impossible to conceive that a reasonable probability exists that but for Gooden's statement that he believed Defendant to have been under the influence of a central nervous system stimulant, the jury would have acquitted Defendant of driving while intoxicated."

• Third. The court, then stating that all of the other steps in the DRE had gone unchallenged, found that:

"Assuming, without deciding, that the trial court abused its discretion in admitting Gooden's opinion testimony, Defendant cannot succeed in his argument because he has not and cannot show the requisite outcome-determinative prejudice resulting from such admission. In order for error to be prejudicial and thus require reversal, it must be shown that, but for the admission of the challenged evidence, there is a reasonable probability that the result would have been different."

Today's case is thus a perfect example as to how many appellate issues are avoided by the courts simply through artful dodging of the issues at hand. Counsel are cautioned to make appeals airtight to avoid such results.


Looking for a Top DUI DWI Attorney? Visit Americas Top DUI and DWI Attorneys at http://www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!