ST. CHARLES • An untold number of breath tests may be thrown out of court in drunken driving cases around the state because of the interpretation of a three-letter word: “and.”
The Department of Health and Senior Services maintains strict written guidelines on the maintenance of breath analysis equipment used by police to ensure the accuracy of chemical testing. According to current regulations, the machines must be periodically tested at one of three levels of blood-alcohol content: 0.10 percent, 0.08 percent (the legal limit in Missouri) or 0.04 percent.
Defense attorneys in recent months noticed an apparent loophole in the regulations from Nov. 30, 2012 to Jan. 29. During those 14 months, the regulations said breath analysis equipment was supposed to be tested to the level of 0.10 percent, 0.08 percent and 0.04 percent. Some interpret the “and” to mean equipment must be calibrated to each of the three levels.
Some defense attorneys successfully have argued that police didn’t test equipment in accordance with regulations.
In civil hearings last week in St. Charles County, Associate Circuit Judge Matthew Thornhill ruled in favor of two alleged drunken drivers because officials couldn’t prove breath analysis equipment was properly maintained to this standard. In both cases the drivers were able to have the suspension of their drivers licenses lifted. A Department of Revenue attorney disagreed at the hearings.
“I may not like doing it, but if the law says its got to be done — that this is what the standard is and they didn’t meet it — then I have to do what the law says,” Thornhill said in an interview Wednesday. “We take an oath. It isn’t up to me to rewrite the law.”
The elimination of breath test evidence could affect two kinds of cases. In civil cases it could make it harder for the Department of Revenue to take away driving privileges.
The loophole could also make it tougher for prosecutors in criminal cases to prove drivers were indeed drunk.
News of the apparent loophole is spreading. Since Thornhill rendered the two judgments, eight more civil cases were argued in his court last week on the same basis. His decision is pending in those cases.
“People are going to pick up on it all over the state because it’s real,” Thornhill said. “It’s sitting right there in the regulations.”
Alleged drunken drivers who blew more than 0.08 percent during the time in question, of course, welcome the new argument.
“They are thrilled,” attorney Travis Noble said of 12 of his clients, nine in St. Charles County and three in Boone County.
St. Charles County Assistant Prosecuting Attorney John Bauer said he started hearing about the argument a few months ago. He said breath test analysis was a “very persuasive piece of evidence,” but he tempered excitement defendants may have.
Prosecutors successfully convict many of the 30,000 DWI cases each year in Missouri that involve defendants who refuse to take breath tests in the first place.
“A breath sample is not the only piece of evidence in a DWI case,” Bauer said. “A lot of times you have cases where not all the evidence is allowed in.”
Though the code of state regulations changes a lot, Bauer said, he thought the old wording was a clerical error, but he wasn’t sure. Department of Health and Senior Services officials couldn’t immediately respond to questions about the issue. Nor could officials with the Department of Revenue.
Attorney Matt Fry, of Clayton, first noticed the “and” while studying the regulations and hearing about a similar matter in Pennsylvania. He said he first pointed it out to Department of Revenue attorneys in early 2013.
“They pretty much laughed,” he said.
In recent months, the regulations were quietly changed back to “or,” meaning police need to test breath analysis machines to one of the levels — not all three, as some interpreted the former record.
“This firestorm just started,” said Fry, who is waiting for hearing dates for several clients who could be affected.
Jeremy Kohler of the Post-Dispatch contributed to this report.