Missouri Court of Appeals Western District, located in Kansas City. Photo by Scott Lauck.
In a pair of decisions, the Missouri Court of Appeals Eastern and Western Districts on April 16 reversed and remanded two drunk-driving cases — one related to a warrantless blood draw, the other to a trial that a key law-enforcement witness did not attend.

In the first case, the ​​Western District ruled that while Missouri’s implied-consent law permits officers to draw blood from unresponsive drivers, officers still must apply for a warrant unless there’s an exigent circumstance — and the waning of a suspect’s blood-alcohol content does not suffice as one.

Nathaniel Wade Osborn ran a red light in Boone County, striking another car, on the evening of Feb. 19, 2015, according to the opinion. He was transported to the hospital. His tongue was injured in the wreck, so he couldn’t speak. Officer Nathan Turner entered his room and asked him to respond to questions by giving a thumbs up for “yes” and thumbs down for “no.” Asked whether he’d been drinking, Osborn made a hand gesture that the officer interpreted as “a little bit.” Asked if he would consent to a preliminary breath test, Osborn gave a thumbs-up response. The test showed the presence of alcohol.

The officer left to contact a supervisor. Meanwhile, medical personnel took Osborn out of the room for treatment. Within an hour, Osborn had returned to the room, where the officer decided to place him under arrest. Osborn was unresponsive, so the officer asked a nurse to obtain a blood sample, which indicated a BAC level of .161, above the legal limit of .08.

Osborn was charged with two counts of second-degree assault. He moved to suppress the blood-draw evidence, but the trial court denied the motion. A jury eventually convicted him on both counts. He filed another motion, arguing that the admission of the blood-draw evidence was an error that necessitated a new trial. Again, the trial court ruled against him.

Then he appealed — and this time, Judges Gary D. Witt, Cynthia L. Martin and Anthony Rex Gabbert agreed with his position, concluding that “although exigent circumstances may sometimes justify a warrantless blood draw, the state did not present any evidence that exigent circumstances were present here.”

The panel cited the U.S. Supreme Court’s decision in Missouri v. McNeely, in which the justices observed that a warrantless blood draw requires state agents to pierce a suspect’s skin, implicating intimate privacy interests. Before doing this, officers should either seek warrants or present facts that establish exigent circumstances — and those circumstances must be something beyond the danger of “imminent destruction of evidence” that arises anytime the body of a DWI suspect is in the metabolic process of lowering, minute by minute, his or her BAC level.

The panel concluded that implied-consent laws do not, by themselves, absolve officers of this obligation. McNeely, taken in combination with a more recent case, Birchfield v. North Dakota, “strongly” suggested “that per se reliance on implied consent statutes to overcome the lack of a warrant will not pass constitutional muster,” according to the panel.

In this case, the panel found, “painfully absent from Officer Turner’s testimony is any mention of why he failed to even attempt to obtain a search warrant” in the hour before arresting Osborn.

Granted, the blood draw wasn’t the only evidence in this case: An on-the-scene witness had approached Osborn’s vehicle and smelled the odor of beer coming from it; Osborn had admitted with his hand gesture to drinking at least some alcohol; and medical chart entries reflected that he was uncooperative and combative due to intoxication, according to the opinion. But the panel found the blood draw was “prejudicial beyond repair” and “outcome determinative,” and so required reversal.

In the other April 16 decision, the Eastern District found that a circuit judge in St. Charles erred when he refused to give any weight to evidence gathered by a former Missouri State Highway Patrol Trooper in a DWI case.

The former trooper did not attend the trial because he had joined the FBI and, while on traveling assignment, never received the subpoena. The circuit judge concluded it would be a due-process violation to admit evidence collected by the former trooper without giving the defendant, James D. Ridgway Jr., the opportunity to cross-examine him and impugn his credibility.

Yet Judge Philip M. Hess, who authored the opinion, and Judges Robert G. Dowd Jr. and Mary K. Hoff, found that to be a “misapplication of the law.” They pointed to a statute expressly designed by the legislature “to eliminate the need for testimony to identify and authenticate the records and provide foundation” and “to eliminate best evidence and hearsay challenges.”

In addition, they pointed to a 2013 decision in which the Eastern District had held that a trial court has no authority to impose a remedy for non-attendance of a witness without a determination that witness was duly summoned. In this case, both parties tried and failed to serve the trooper a subpoena; the FBI wouldn’t accept service because the subpoena did not relate to his work with the bureau.

Ridgway’s right to due process, the panel found, “was not violated.”

In both of these appeals cases, the parties’ attorneys did not respond to requests for comment.

The cases are State of Missouri v. Nathaniel Wade Osborn, WD80959, and James D. Ridgway Jr. v Director of Revenue, ED106535.

By Nicholas Phillips​ | Missouri Lawyers Weekly