Appellate court reverses Copeland ruling

There he goes again.
Jasper County Circuit Court Judge Richard Copeland's decision to restore the driving privileges of a man who refused to take a breathalyzer test after being stopped by a policeman was reversed by the Missouri Southern District Court of Appeals Thursday.
This is not a first for Copeland, who has been reversed on this type of decision numerous times during his years on the bench.
This time, the court backed the Director of Revenue, who had made an administrative decision to strip John F. Burdynski of his driver's license.
The details of the Burdynski stop were given in the court opinion. On Dec. 18, 2004, Burdynski was driving a truck in the county, which was moving erratically, so he was stopped by an officer. "The officer noticed a moderate odor of alcohol about (Burdynski) and that his eyes were bloodshot and his speech slurred. After he failed field sobriety tests, he was taken to the Carthage Police Department, according to the opinion.
Officers attempted to get him to take a breathalyzer test. Initially, he said he wanted to see a lawyer, then he called his wife at their Houston, Texas, home. Twenty minutes later, officers again tried to get him to take the test. Burdynski said he would not do it until he could "talk to a judge." He was marked down for refusing to take the test.
Copeland ruled that Burdysnki had not been allowed "the statutory time to consult an attorney," according to the opinion, and ordered Burdysnki's driving privileges restored. The appellate panel said Burdynski had been given the required 20 minutes to consult with an attorney so Copeland's ruling was overturned.
This is not the first time I have written about Judge Copeland's penchant for using technicalities to put drivers back on the streets. I wrote about the judge during a drunk driving series the Carthage Press did in December 1998 and things have not changed much since that time.
In September 2004, The Turner Report featured numerous items about how often the higher courts have had to reverse Copeland's decisions.
The Missouri Court of Appeals for the Southern District in September 2004 ordered the revocation of a Jasper County woman's driving privileges Tuesday, reversing a Copeland decision that gave the woman back her license on a technicality after she refused to take a blood alcohol test.
The 2004 case revolved around an incident which occurred 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 nothing 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."
In September 2004, the court rejected another of Judge Copeland's decisions. The Court of Appeals 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 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."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.