Some Missouri DWIs Could Be Overturned Because of Invalid Breath - KOAM TV 7

Some Missouri DWIs Could Be Overturned Because of Invalid Breathalyzer Tests


Phones have been ringing off the hook at Judd McPherson's law office in Joplin, with clients asking if they have a chance that their DWI case could be overturned after the Missouri Supreme court finds that many breathalyzer machines used from December 2012-January 2014 didn't comply with state regulations.

McPherson says "I've had people call me saying 'hey I saw on the news or I read in the paper’ that hundreds, or I've had some people say they've read that thousands DWI’s could be thrown out'. It could certainly affect thousands of cases based on the number but to say that those would get thrown out, I think it's going to be a very, very, very small percentage that it would actually cause that DWI to be thrown out."

In December of 2012 the state changed the rules for calibrating breathalyzer machines, and the discrepancy came down to semantics.

'What happened is it used to be "or," and so they could use any of the three levels. And they changed it to "and," which means, you have to use all three levels. And so most of them calibrated it at 0.08 which is the legal limit, but they didn't calibrate the 0.10 or 0.04."

The machines didn't necessarily provide an incorrect reading; they just weren't up to standard. But the breathalyzer test isn't the only way to arrest someone for DWI.

Assistant Joplin Police Chief Matt Stewart says "You also have a possible driving case, how they did on the standard field sobriety test, as well as the officer's observations."

But in very rare instances, McPherson says it's possible there could be a case.

"If you didn't take field sobriety tests, let’s say you were parked out in front your house listening to the radio.  And they pull up, so they don't have a driving case. You either don't take the field sobriety test or you pass all the field sobriety tests and all you have is a mild odor of intoxicants. If your breath test got thrown out it would be good for you."

McPherson says if you feel that your DWI case could fall into the extreme situation where it could be thrown out you should contact your original defense lawyer.

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