Missouri Criminal Lawyers Blog

This post is by Guest Author, Carol Montrose, who is not affiliated with our law firm and this article does not necessarily reflect the legal opinions or views of Sansone / Lauber.

Whether or not you feel you deserve a DUI, if you get pulled over and you've been drinking (even if it's only a couple of beers) there's a good chance you're going to get one. This can cause a major headache in your life (although a lot less major than if you have an accident while under the influence of alcohol) because you can lose money, your license, and even your freedom in the process, depending on the state you live in, the severity of the charges, and the judge assigned to your case. But just because you are picked up for a DUI and then convicted and sentenced in court doesn't mean you don't still have legal recourse to fight the charges. Here's how to appeal the ruling and try to get it overturned or at least aim for a lighter sentence.

1. Ask for a new trial. Did you know that you can make an immediate appeal to the judge responsible for presiding over your trial? If you feel that your case was mishandled (the evidence, in particular), leading to an unfair conviction, or if you feel that the sentencing was too harsh for your infraction (especially if you are a first-time offender) then you can ask immediately for another trial. Unfortunately, judges rarely grant such requests, so you'll probably have to take it to the next level.

2. Hire an attorney. Once you have ascertained that an appeal to a higher court is your only course of action, it's time to lawyer up. Your goal is to find an attorney who has a good track record with cases similar to yours. He or she should know the state laws backwards and forwards, including how evidence could be mishandled (providing for the crux of your case, since you won't be tried a second time, but rather your first trial will be reviewed for inconsistencies or mistakes). An experienced lawyer will also be well aware of procedures such as what paperwork to file and what deadlines to observe.

3. File immediately for appeal. You may not have much time to file for an appeal after sentencing so you need to shake a leg. In some states, you are required to file within as little as ten days, while other states may offer up to thirty days to file. The point is, you don't have much time if you want a second chance to fight your DUI charge.

4. Ask for a stay of sentencing. One thing that most people would neglect to do if not for the advice of a good lawyer is to ask for the sentence to be stayed pending appeal. This basically means that you will not have to begin carrying out your sentence until after a decision has been made regarding your appeal.

5. Seek out substance abuse education. Regardless of whether it is required by your sentence, you should enter into substance abuse education before the hearing for your appeal. In some cases, showing that you are committed to making amends for your infraction could go a long way toward getting a reduced sentence, if not winning your appeal. And frankly, if you were caught on DUI charges once, it's almost certainly not the first time you were drinking and driving. Maybe some education on the dangers of your behavior will save you from more serious charges down the road.

Carol Montrose writes for New Jersey DUI Attorney, a New Jersey DWI defense law firm.

As DWI lawyers commonly argue to a jury, it is not illegal to drink then drive, it is illegal to drive while intoxicated. So when are you legally intoxicated? How do you know? Best choice is to avoid the situation all together, but in reality, we all like to have fun and not always call a taxi or have a designated driver available. Now you can estimate your level of intoxication, to help decide if you are considered legally intoxicated, from your cell phone. The Missouri Department of Transportation (MoDOT) just put out and App for the iphone and android called "Show Me My Buzz" (Download App Here). The idea behind it is simple, enter some basic information to calculate your Blood Alcohol Concentration (BAC). If you go to your market on your android phone or your app store on your iphone you will find a description of the app along with user reviews.

The App is very simple it has categories for weight, hours, beer, wine, liquor and male or female. You enter your information and it calculates your BAC along with a message depending on how high your BAC is. When you BAC gets close to the Missouri Legal limit of .08 it tells you "your buzzed" and you could be arrested for drunk driving. It can be a useful tool to help you if you have been out drinking with friends. The best part about the app is on the bottom of the page it has a button for taxi which automatically dials a taxi company.

MoDOT assistant chief engineer, Don Hillis stated "this new app is a creative way to get people talking about the subject and then finding a sober driver." Missouri is the 2nd state in the nation to make an app like this available. The important thing people need to remember is that in the state of Missouri it is illegal to operate a vehicle with a BAC above .08. See Missouri Statute 577.012, stating "A person commits the crime of "driving with excessive blood alcohol content" if such person operates a motor vehicle in this state with eight-hundredths of one percent or more [.08 BAC] by weight of alcohol in such person's blood."

If you play around with the app it becomes clear that it is easy to get to that thresh hold quickly if you are not paying attention to how much you are drinking. As an experienced Missouri DWI attorney I recommend every client of mine to have a designated driver. Also, we always suggest to our clients that they purchase an inexpensive portable BAC machine that you can pick up at your local drug store or auto parts store. These devices are accurate enough to determine if you should be driving or whether you need to leave your car and get a cab ride home.

See CBS St Louis News Article by Brett Blume, Drunk Yet? There's an App for That!

Continue reading "Missouri Department of Transportation ("MoDOT") Creates a DWI Phone App for the Residents of the "Show Me" State: "Show Me My Buzz"" »

Guest Author: Allison Gamble, Student of Psychology

Arrests and convictions for charges of driving under the influence are often made based on evidence from field sobriety tests. While law enforcement officers often contend these tests are foolproof, forensic psychology and the statistics show otherwise. In a substantial number of cases field sobriety tests tend to indicate individuals are intoxicated when their blood alcohol levels are still below legal limits. A revision of the way this testing is performed may be necessary to prevent wrongful DUI charges.

There are several types of field sobriety tests used, and none has proven infallible in peer-reviewed research. On the contrary, studies often reveal significant problems with these tests. The horizontal gaze nystagmus (HGN) test looks for involuntary eye movements as an individual is told to look at a certain point in space. Even the US Department of Transportation states this test only accurately detects intoxicated people 88 percent of the time. A separate study performed by Maryland law enforcement officers found it was only accurate 79 percent of the time, and about one third of subjects below the legal blood alcohol limit were wrongly identified as intoxicated using this test.

Another common way to detect drunk drivers is with the walk and turn test, or a test involving standing on one foot. The Department of Transportation states these tests are about 79 percent and 83 percent accurate, respectively. However, critics of these methods point out the studies from which these statistics are derived were conducted by highly motivated officers specially trained to administer these tests, and who were being observed by civilian analysts. They point out that in actual roadside situations the detection rate could be much higher, and officers may be simply looking to make arrests, and so will tend to interpret cues in such a way that they will believe people are intoxicated, even if they legally aren't.

Some peer-reviewed studies have been even more critical of these tests. They state these tests are only accurate around two thirds of the time in detecting inebriated individuals, and often lead to false positives in assessing sober subjects. These studies found that only rarely were people who hadn't had anything to drink actually judged to be completely sober, even if officers didn't deem them "too drunk to drive."

Even field sobriety tests using breathalyzers aren't always accurate. The Department of Transportation has stated these devices accurately detect blood alcohol content about 91 percent of the time. Accordingly, all else being equal breathalyzer detections will be incorrect almost one time in ten. Moreover, depending on the skill of officers in administering other field sobriety tests and properly gauging subjects' responses, individuals could still easily be wrongly arrested for DUIs. When the only completely reliable determination of blood alcohol content is a blood test, being exonerated after the fact is impossible.

The tests currently used to evaluate sobriety in the field have unacceptably high false positive rates, and don't always detect intoxicated individuals consistently enough to be considered reliable. Often officers' own motivations, experiences, and beliefs regarding the people they're testing will lead to arrests more than testing does. Until more accurate field tests of blood alcohol levels are available, the results of these tests should always be supplemented by actual blood testing in order to absolutely prove someone has been drinking and driving.

Continue reading "Are Field Sobriety Tests Reliable in DWI Arrests? Several Studies Question FST Reliability " »

Have you ever been too drunk to drive and you realized it while you were driving and you wondered what should I do? You should pull over immediately and turn off the car, take the keys out of the ignition, and get out of the car as soon as possible. See St Louis Criminal Law Blog Article: "What Constitutes "Operating a Motor Vehicle" under Missouri DWI Law?" This is your best chance of avoiding a DWI if a police officer comes upon you. The Missouri Court of Appeals in the Western District ruled in State v Hatfield, that the State must establish the temporal connection between the defendant's last operation of a motor vehicle and his observed illegal intoxication. Basically, just because you are standing next on the side of the road and you drove does not necessarily mean that you are guilty of DWI. The State must show that you were intoxicated at the time of vehicle operation.

Specifically in the drunk driving related case of State v. Hatfield, the Cass County Sheriff's Department was dispatched to an accident and the Deputy found Billy Hatfield standing next to a car that was involved in an motor vehicle accident. The car had damage to the front end, there were ruts in a ditch next to the vehicle, and a damaged fence nearby. Billy Hatfield told the officer that "I lost it making the turn." The Deputy reported that he smelled a strong odor of alcohol on his breath, he had slurred speech and was having trouble with his balance. The Deputy placed Billy Hatfield under arrest for DWI and driving on a revoked license. Hatfield refused to take the field sobriety tests and refused to provide a breath sample. Billy Hatfield took his case to trial and was convicted of DWI. The sole witness at trial was the deputy. Billy Hatfield appealed his conviction on the basis that the evidence was insufficient to convict him of DWI because the State failed to establish that he was under the influence of alcohol at the time he was operating a motor vehicle.

To convict a person of DWI in the state of Missouri the state must prove beyond a reasonable doubt that the Defendant was (1) driving (2) while (3) intoxicated. See Missouri Revised Statute 577.010. Billy Hatfield did not dispute that he was driving or that he was intoxicated. He disputed that he was doing both of them at the same time. The state argued on appeal that there was circumstantial evidence to infer that Billy Hatfield was impaired while driving. They referred to his admission to driving and his personal appearance of slurred speech, glassy watery eyes, slight sway, odor of alcohol and a little stumbling while he walked. The Court did not believe that the State had met their burden in this case. The court stated that Hatfield's mere intoxication near his vehicle, without evidence establishing when he last operated it, is insufficient to support his conviction for DWI. The Court relied on previous cases to make it clear that the State must present evidence linking in time the defendant's intoxication to the operation of a motor vehicle. Specifically in State v. Davis, 217 S.W.3d 358, 361 (Mo. App. W.D. 2007) Where intoxication is observed at a time separate from the operation of a motor vehicle, a fact-finder cannot determine that one who is under the influence of an alcoholic beverage at an established time was necessarily in that condition at some earlier unspecified moment without any evidence concerning the length of the interval involved.
For an in depth discussion see State v. Byron, 222 S.W.3d, 341 (Mo.App.W.D.2007) State v. Liebhart, 707 S.W.2d 427, 429 (Mo. App.W.D. 1986)

The Court in this case made it clear that the State failed to establish that Billy Hatfield was intoxicated when he was driving. There was no evidence as to the approximate time that Hatfield was operating the vehicle or the time of the accident occurred or how much time had elapsed between the accident and the arrest. The Court even pointed out how poorly the police officer investigated the case. The Court finished their opinion with strong words for the state by stating "it is the obligation of the State to prove a criminal case beyond a reasonable doubt. It is not the function of the court to ignore its failure." See State v. Wilson.

Continue reading "Missouri DWI Defense Tactic: State Must Prove Temporal Connection Between Time Car was Driven and Intoxication" »

As a St Louis criminal defense lawyer, one of the first issues our clients need us to deal with is getting a low or at least a reasonable bond set so they can get out of jail while the case is going through the court system, as we are all innocent until proven guilty. Recently, Judge John Garvey and Judge Barbara Peebles in the Circuit Court of the City of St. Louis have made a point in setting high bonds for defendants charged with gun crimes in the city of St. Louis. Typically in the past a person arrested on a gun charge such as Unlawful Use of a Weapon or Unlawfully Carrying a Concealed Weapon (CCW), Unlawful Use of a Weapon, Flourishing or other gun related charges were able to get a bond set that was reasonable. Most of the time they were able to get a 10% bond which means that if the Judge sets the bond at $30,000.00 10% then they would only have to post $3,000.00 in cash to be released.

Judge Garvey and other Judges in the City have a made a point to set the bonds higher without allowing a 10% to be posted. This means that many defendants charged with a gun crime are seeing bonds set at $50,000.00 or even as high as $75,000.00 cash only. When asked for a reason the Judges have pointed out, that based on their own perception, gun violence is increasing and they cite examples of innocent bystanders being shot in the last couple of months.

Bonds are typically set to insure that the defendant will appear in court and to ensure that the public can be protected. Each case should be looked individually to determine if a high bond is necessary. This new policy has raised some concern from the City's lead Public Defender, Mary Fox. She pointed out that State law says Judges must weigh the nature and circumstances of the charge and a criminal's background before a bond is set.

Recently a case was taken up to the Supreme Court of Missouri challenging the new bonds being set by Judge Garvey. Specifically, a Defendant was released on a bond of $15,000.00 for a gun charge while he was waiting for a grand jury indictment. Upon the grand jury indictment Judge Garvey raised the bail to $75,000.00 cash only. The case was sent up to the Supreme Court for review as the defense attorney argued that the bond increase was unfair. The Supreme Court declined to hear the case. As it stands now the City of St. Louis will continue to issue high bonds in gun cases making it very difficult for defendants to make the bond resulting in many people sitting in jail awaiting the outcome of their case.

Although the purpose of the higher bonds is to discourage people from committing gun crimes it most likely will create other problems. The city jail will become over crowded with people waiting on trials. People with no criminal history may end up getting treated the same way as a person with multiple felonies on their criminal history. Even people who are innocent may enter a plea of guilty so that they can be released. It remains to be seen if this policy will have a long lasting effect on gun crimes in the St. Louis Area.

If you have been arrested for a gun crime call St Louis law firm Sansone / Lauber today for a free consultation.

Post Dispatch Article: St. Louis judges say higher bonds may help curb gun violence