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A person can be accused of driving while intoxicated by alcohol or while under the influence of drugs. It is fairly common knowledge that the legal limit in the State of Missouri is 0.08% blood alcohol content. This is actually a presumptive limit. In other words, if an individual submits to a chemical test of their breath or blood, and it tests out to 0.08% blood alcohol content or greater, the Government can rely on a presumption of intoxication at trial. One can potentially rebut the presumption of intoxication if they perform exceedingly well on field sobriety testing, exhibit steady balance and coherent speech, and is not observed driving in a fashion one ordinarily associates with drunken driving. However, it has been my experience that the higher one’s blood alcohol content exceeds the presumptive limit, the more difficult it is to persuade the Court to acquit. One can also be accused of driving under the influence of drugs. Unlike intoxication by alcohol, there is no presumptive limit established at this time to assist the prosecution in impairment by drug cases. A person believed to be driving under the influence of drugs often is asked to submit to a drug recognition examination by a trained police officer in which certain physiological signs are monitored to determine their consistency with the use of a certain drug or controlled substance.

The first thing the defense attorney must investigate in these cases is whether or not the initial police contact with the client was legally permissible. As in all other types of instances where individuals are charged with crimes, one’s Constitutional rights come into play. Police officers cannot randomly pull a driver over without a legitimate reason. The Fourth Amendment protects against unlawful seizures, and when an officer detains a person for investigation after pulling them over this constitutes a detention or a seizure. If the police officer cannot justify his initial stop of the vehicle, any evidence obtained as a result of the stop may be subject to suppression and excluded from evidence. Consequently, if the stop is deemed to be unlawful, evidence as important as blood alcohol content and performance on field sobriety testing would be deemed inadmissible.

The Government has the burden of proving the defendant was intoxicated at the time of operation. This is often difficult if there has been a single car accident and no independent witnesses. This may also be difficult if there is any evidence that the defendant consumed alcohol after ceasing operation of the vehicle. Operation is defined as physically driving or being in actual physical control of the vehicle. Actual physical control, as construed by Missouri Courts, as existing or present bodily restraint directing influence, domination or regulation of the automobile. If a car movement cannot be regulated, even if it is running, it can be argued the Government cannot prove operation. I was involved in the trial of two cases where this was an issue. In one case the car was stuck in mud. In another case the car had high centered on an embankment and was incapable of forward motion. However, Missouri Courts have found, a defendant asleep in the driver’s seat of the automobile while running, can potentially regulate the movements of the vehicle, constituting operation.