JACKSON, MO (KFVS) - An unprecedented case in Missouri is perhaps one more good reason to not drink and drive this holiday weekend.
Recent changes in Missouri law is affecting what is happening on DWI stops. It's all about the implied consent law. If you have a Missouri driver's license then you automatically agree to take a blood alcohol test while under arrest for DWI. You can refuse, but it may be more trouble than it's worth.
Trooper Blaine Adams with the Missouri Highway Patrol says changes in the law are making his job easier.
"It's excellent," said Adams.
Lawmakers eliminated four words from the implied consent law. "None shall be given," saying if a person under arrest for DWI refuses a blood alcohol test then (under the previous statute) no test would be given.
"The only way a police officer could obtain a chemical test if you refused would be to call a prosecutor and obtain a search warrant," said John N. Koester Jr., Cape Girardeau County Assistant Prosecuting Attorney.
The law implies driving on the roads is a privilege, not a right.
"It's implied you're giving consent for a blood, breath or urine test so a police officer can obtain your level of intoxication," said Koester.
If a person refuses a breath test, troopers like Blaine Adams will drive them straight to a local hospital for a blood test.
"Before we would have to contact a prosecutor and fill out paperwork, wake up a judge, and get a search warrant," said Adams.
Last October, a Jackson man was pulled over in Cape Girardeau County under suspicion of DWI. According to court records, when the officer made contact with the man he detected a strong odor of alcohol on his breath and his eyes were glassy and bloodshot. The man stated he had a couple of beers, and was unstable when he exited his vehicle.
The officer, according to court records, administered field sobriety tests in which the subject reportedly performed poorly. He then refused the breath test, so a blood sample was taken without his permission.
"His blood alcohol turned out to be a .154 which is nearly twice the legal limit," said Koester.
That case went to court, and the trial court ruled the case did not involve exigent circumstances saying the Fourth Amendment requires either a warrant or exigent circumstance to withdraw blood without consent.
Defense attorney Stephen Wilson applauded the trial court granting the defendant's motion to suppress evidence obtained by the blood withdraw.
"The fourth amendment of the constitution says you can't have unreasonable search and seizures unless you get a warrant from a judge," said Stephen Wilson.
The state appealed the suppression of the evidence. In it's sole argument the state argued the trial court erred in granting the defendant's motion to suppress the blood sample seized from the defendant without his consent and without a warrant after he was arrested for driving while intoxicated because the legislature eliminated the "none shall be given" language. That was the only provision, the state argued under Missouri law barring police officers from obtaining nonconsensual and warrantless blood samples.
The Eastern District Missouri Court of Appeals agreed, and ruled in our favor of the state in a unanimous decision.
Koester says with the change in the law, it removes a barrier.
"A DWI case is very unique," said Koester. "With each passing minute evidence is literally being destroyed."
He says waiting on a search warrant could take an hour or two, giving time for the subject to sober up.
"Your best evidence is the closest time to the arrest," said Trooper Adams.
"The act of a highway patrol or police officer or a county deputy who isn't trained getting to decide to arrest someone, and then haul them off to a hospital and demand blood I think it violates the constitution," defense attorney Stephen Wilson said.
Wilson says leave that decision to a judge.
Trooper Adams says it's all about saving lives, and believes this change might keep more people from driving drunk.
"I tell people you refuse the test then you will be cited for refusal, and lose your license for one year," said Adams. "I'm still going to get a blood sample-are you sure you want to refuse? I haven't had a refusal since then."
"We would find the trial court erred in granting Defendant's motion to suppress the blood sample seized from Defendant without his consent and without a warrant after he was arrested for driving while intoxicated," Judge Robert Dowd wrote. "However, in light of the fact that no Missouri case has yet addressed the import of the removal of the words "none shall be give" from Section 577.041, which we believe involves a significant departure from current case law as represented in by the Smith case, and the general interest and importance of the issues involved, we transfer the case to the Missouri Supreme Court."
The Supreme Court is expected to start hearing arguments this fall.