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Some Mo. DWIs could be revoked due to loophole

Posted at 5:43 PM, Jan 20, 2016
and last updated 2016-01-20 19:36:20-05

In a 4-3 decision, the Missouri Supreme Court ruled breathalyzer tests taken between November 30, 2012 and January 29, 2014 could be inadmissible.

Click here to view the court's opinion 

The reason-- because of how police departments calibrated the devices.

Breathalyzers are often used to help police departments identify drivers intoxicated above the legal limits. The machines are regulated by the Missouri Department of Health and Senior Services.

Between December 2012 and January 2014, the department changed the wording about how these machines were calibrated.

By writing the word “and” instead of “or,” the regulations required the machines to be calibrated three times instead of once.

2013

(2) Standard simulator solutions, used to verify and calibrate evidential breath analyzers shall be solutions from approved suppliers. The standard simulator solutions used shall have a vapor concentration within five percent (5%) of the following values:

(A) 0.10%;

(B) 0.08%; and (emphasis added)

(C) 0.04%.

 

2014

(2) Standard simulator solutions,used to verify and calibrate evidential breath analyzers shall be solutions from approved suppliers. The standard simulator solutions used shall have a vapor concentration within five percent (5%) of the following values:

(A) 0.10%;

(B) 0.08%; or (emphasis added)

(C) 0.04%.

According to Kansas City defense attorney John Picerno, police departments across the state did not adjust to the change.

“This deals with the inadmissibility of if the blood test results could be used against them in court. For most people the answer to that question is ‘no,’” said Picerno.

While breathalyzers could be dismissed during this 14-month period, the court’s ruling does not dismiss all of the evidence. Eye and walking tests could still be admissible, said Picerno.

The ruling is little comfort to those like Annette Murray.

On July 4, 2011, Murray lost her sister and 11-year-old niece when a drunk driver smashed into their car. According to police, he was going the wrong way when he smashed into the car. Two years later, in 2013, Murray lost her brother-in-law to another drunk driver who ran a red light.

“It just turns your entire family upside down,” said Murray. “Whatever their punishment is, is lighter than a death sentence. And that’s what my family has lived through.” 

 

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Ariel Rothfield can be reached at ariel.rothfield@kshb.com. 

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