The Missouri Court of Appeals for the Southern District ordered the revocation of a Jasper County woman's driving privileges Tuesday, reversing a decision by Jasper County Associate Circuit Court Judge Richard Copeland that gave the woman back her license on a technicality after she refused to take a blood alcohol test.
In the state of Missouri, refusal to take a breath test is automatic grounds for license revocation. This is at least the sixth time over the last several years and the second time in the last eight days that a high court has had to reverse Copeland's decisions to give people who had been arrested for alcohol-related traffic offenses the opportunity to do it again.
The five other sitting Jasper County judges, William Carl Crawford, Jon Dermott, David Dally, Steve Carlton, and Joe Schoeberl, have combined for one such decision. That one was made my Judge Dermott, who only made his decision after it became apparent that it wasn't clear who was driving a car the night in question.
In Missouri, the decision to revoke a driver's license is made is an administrative decision made by the Department of Revenue. The decision may then be appealed in a civil action at the circuit court level.
The most recent decision revolved around an incident which occurred on May 2, 2003, in Carterville, according to court records. Carterville police officer Ronnie Houdyshell was called to the corner of Main and Hatcher, where residents had said they had seen "an intoxicated person pull up in a vehicle and then slump over."
According to court records, Houdyshell found Ms. Spry sitting on the passenger side of the car, apparently asleep. After another officer arrived, Houdyshell woke the woman up, though it took a while. When Ms. Spry opened the passenger-side of the car, Houdyshell "observed a half-empty bottle of vodka and a beer bottle. Spry appeared to be extremely intoxicated," according to the court decision.
Houdyshell had not seen her driving and couldn't tell if the engine was warm, but he saw notning suggesting there had been another person driving. He asked Ms. Spry how she had gotten there. "She simply replied, 'Me.' "
She was taken to the Carterville Police Department for sobriety tests. According to the court records, she said she had been drinking earlier in the evening, but she did not say how much she had to drink. After the field tests, Houdyshell determined she was drunk and asked her to take a breath test. She was told that refusal to take the test could mean revocation of her license for one year.
According to the court record, she started to take the test, but did not give enough of a sample. She tried again, but she "just quit blowing." Houdyshell explained once more what refusal to take the test could mean. "She just quit," Houdyshell said.
Houdyshell told Judge Copeland the same information at the revocation hearing, according to the court opinion. Ms. Spry's attorney called no witnesses, but asked Judge Copeland for a directed verdict in Ms. Spry's favor. That's exactly what happened. In his ruling, Judge Copeland said there was "no probable cause to believe Defendant was driving while intoxicated."
As mentioned earlier, this is not the first time the appeals court has had to reverse one of Judge Copeland's decisions. Just eight days ago, the court rejected another of Judge Copeland's decisions.
The Missouri Southern District Court of Appeals Monday backed the Department of Revenue's appeal to Copeland's decision that put Sara Ruth back on the streets.Ms. Ruth's license was revoked for one year after she refused to take a breathalyzer test following a DWI arrest. Ms. Ruth had appealed the Department of Revenue's decision, and after a hearing, Copeland determined that she had been arrested for driving while intoxicated, but had not refused the breathalyzer test and ordered her driving privileges reinstated even though the record clearly contradicted his judgment.
The record, as noted last week in The Turner Report, said that on the evening of May 29, 2003, Captain Jason Wright and Officer Wanda Hembree were on patrol in Joplin. While they were stopped at a traffic light, they saw a Ford Ranger stopped in the right hand lane in front of them. The passenger door was open and someone was leaning out of the car. The officers pulled up behind the car.According to their report, the officer smelled alcohol. They asked the driver if anything was wrong. She said "her friend had too much to drink and was sick." Wright saw vomit inside the car.Wright asked Ms. Ruth if she had been drinking. She said she had been drinking a couple of hours earlier. Wright detected a smell of alcohol coming from Ms. Ruth and wrote that Ms. Ruth's eyes were "watery, bloodshot, and glassy; she was wobbling and staggering; and her speech was slurred." Ms. Ruth had no problem with an eyetracking test, but failed the walk-and-turn test, the report said.A preliminary breath test indicated she was drunk, according to the report, so she was arrested for driving while intoxicated. When they arrived at the Joplin Police Station, Ms. Ruth was given her Miranda rights, answered some questions, then she said she did not want to answer any more.
"The records show she was asked to submit to a chemical test of her breath. Hembree determined (Ms. Ruth) refused to submit to the test and noted the refusal" on the report.At her trial, Ms. Ruth testified that since she had already been given the breathalyzer during the stop, she had asked if she could "have time to think about it" when the second request was made. She said she was never asked and that the officer simply said on the report that she had refused.Based on that testimony, Copeland restored Ms. Ruth's driving privileges.In the appeal, the Department of Revenue said Copeland's decision was wrong because there were reasonable grounds for arresting Ms. Ruth for driving while intoxicated and the record showed she had refused the breathalyzer test. Under Missouri law, all persons who drive on state highways are "deemed to have consented to a chemical test of their breath."According to the appellate court ruling, "The evidence presented at trial unequivocally shows that (Ms. Ruth) initially refused to submit to the breath test."The appellate court ordered Copeland to reinstate the one-year revocation of Ms. Ruth's license.
On Aug. 29, 2000, Judge Copeland made a similar decision in the case of Paul Riggin, 48, Joplin. According to the court record, in the early morning hours of Dec. 13, 1998, outside a Joplin nightclub, an officer tried to approach Riggin as he got into his car. Riggin waved him off, got into the car, and drove off. When he was stopped, the court opinion said, Riggin "had a strong odor of alcohol," admitted to having had four or five drinks and he failed three field sobriety tests. He also tested positive on a breath test given at the scene.
No witnesses were presented at the revocation hearing, only the officer's written report. Judge Copeland ruled that the Director of Revenue had failed to prove the case and restored Riggin's driving privileges.
On July 7, 2000, Judge Copeland restored the driving privileges of Paul Sutton, 59, Joplin. Sutton had been involved in an accident on Dec. 19, 1998, according to court records. Sutton "admitted to ingesting two beers just before the accident." He failed several field sobriety tests and a preliminary breath test indicated "a high level of alcohol was present in his blood."
Riggin consented to another breath test at the station but "failed to give an adequate sample." Despite the officer's testimony, Judge Copeland ruled there was no evidence that Sutton had refused to take the test and put Sutton back on the streets.
The appellate court also overruled Judge Copeland in its Jan. 22, 1999, decision to revoke the driving privileges of Michael S. Delzell.
According to court records. on April 6, 1997, a Joplin restaurant manager noticed "a man sitting in the driver's seat of a car in the restaurant parking lot with the engine running." The car had not been there a few minutes earlier, the manager said.
It turned out the man had come to the restaurant to pick up his wife, who was a restaurant employee. The only trouble was she had left two hours earlier. The officer who investigated noticed that Delzell appeared to be intoxicated. Delzell failed field sobriety tests. He admitted he had been drinking and driving. When he was taken to the police station, he failed a breath test.
But since neither the officer nor the restaurant manager had actually seen Delzell driving, Judge Copeland restored Delzell's driving privileges.
Judge Copeland also restored the driving privileges of Jeffrey Lasley, a decision which was reversed by the appellate court on Oct. 21, 1997.
Even though Lasley had failed field sobriety tests and a breath test indicated he had a blood alcohol content of 1.2, Judge Copeland gave Delzell back his license, indicating that the arresting officer had no probable cause to stop Delzell.
Only one time over the past several years has the appellate court backed Judge Copeland in his decision to restore driving privileges. According to court records, the panel on March 6, 2003, allowed Alexandre Kisselev to keep his driver's license. Kisselev, who had only been in the United States since 1997 or 1998, was not "fluent in the English language" according to the court's opinion and may not have understood how to properly take a breath test.
A little commentary on the subject: If the cases in which Judge Copeland restored driving privileges were the only ones in the state, the situation might not be so bad, but as I reported in a series done by The Carthage Press in December 1998, there are other judges in Missouri who make the same kinds of decisions, even under the scrutiny of organizations like Mothers Against Drunk Drivers. One St. Louis area judge alone had been reversed 25 times by higher courts for putting drunk drivers back on the streets.
If there was a way these judges could be bypassed on drunk driving cases, the situation might not be so bad. Unfortunately, Missouri lawyers know who they are and steer their clients into those oh-so-friendly courtrooms.
It doesn't matter how many tough drunk driving laws are passed, or how many tough judges are put on the bench, as long as there are a few who are willing to ignore basic evidence and play Russian roulette with people's lives.