The Missouri Supreme Court in Jefferson City is considering a challenge to a drunk driving conviction.  The seven judges heard arguments Wednesday over a claim that an arrestee’s breathalyzer results should be inadmissible and that notices given when driver’s licenses are suspended are a violation of the right to due process.

Missouri Supreme Court – Image courtesy of Missouri Courts

Washington Police in eastern Missouri arrested Matthew Carvalho for suspicion of driving while intoxicated in May 2017. At the police station, an officer asked Carvalho to submit to a breath test. Carvalho initially declined but, after learning his license would be automatically revoked for a year for refusing the test, and after speaking with an attorney, he consented. The test revealed his blood alcohol content was 0.087, which exceeded the legal limit. The officer seized Carvalho’s driving license and gave him a notice of suspension.

The suspension of his license was upheld at an administrative hearing requested by Carvalho.  His argument against the admissibility of the breath test and his claim of being denied due process was then rejected by the circuit court in Franklin County in March 2018.

Carvalho claims his breath test should be inadmissible for three reasons.

He contends the police failed to file a report on a maintenance check of the breath analyzer used in his breath test with the Department of Health and Senior Services within 15 days as required.

Carvalho also contends Missouri’s Implied Consent Warning issued to him by an officer before the breath test is a violation of due process because it specified consequences if he declined to take the test but failed to inform him of the consequences if he submitted to it.  Drivers who decline the test have their licenses immediately revoked for a year.  Carvalho claims a driver does not properly understand the consequences of a refusal if the driver does not understand the consequences of submitting to the test.

He further contends the Notice of Suspension issued to him by the arresting officer is misleading because it only states that the driving privilege is being suspended due to an arrest on probable cause for driving while intoxicated.  He points out the Notice ignores the other requirements for a suspension – that the driver actually had a blood alcohol content of greater than 0.08 and was actually driving.

Attorneys representing Carvalho from the St. Louis criminal defense law firm Rosenblum Schwartz & Fry are seeking to have a previous Missouri court ruling overturned by the Supreme court while considering in his case.

In their arguments against Carvalho, the state is using a 1991 appeals court decision involving the DWI arrest of Cynthia Bartlett Turcotte in St. Charles County.  In reversing a lower court’s reinstatement of Turcotte’s driving privileges, the appeals court determined that the requirement to file a report on a breathalyzer maintenance check with the Department of Health and Senior Services within 15 days was irrelevant.  A three-judge panel said, “the failure to file timely maintenance reports does not impeach a machine’s accuracy, which is the main concern here.”

Carvalho’s attorneys claim the appeals court’s reasoning is inconsistent and should be overruled, noting that the requirement discarded by the appeals court is part of the same rule that contains a requirement the appeals court upheld – that maintenance checks be conducted every 35 days.

But the state points to another conclusion in the Turcotte proceedings to make its case.  In it, the judges said that Turcotte couldn’t claim she was harmed by the record-keeping process of reporting maintenance checks on breathalyzers, and that her only interest “is that the breathalyzer not be inaccurate.”

In addition, the state relies a provision in Missouri law that sets three requirements for breath analyzer tests to be admissible in court – that the “test was performed: (1) by following the approved methods and techniques of the Department of Health; (2) by a person holding a valid permit; and (3) on equipment and devices approved by the Department of Health.”

Among its other arguments in the case before the Supreme Court, the state countered Carvalho’s claim that Implied Consent Warning violated the right to due process. Carvalho claims the warning presents a violation because it states the consequences for declining the breath test but fails to stipulate the consequences of submitting to the test.  The state contends that a previous court decision in 1996 is clear that due process does not require arrestees be made aware of the consequences of submitting to a breath test.

In that decision, the Court stated that “a warning is sufficient for purposes of due process unless the words used either (1) fail to inform the arrestee of all of the consequences of refusal, or (2) mislead the arrestee into believing that the consequences of refusal are different than the law actually provides.”

Michael Martinich-Sauter, Deputy state Attorney General for Special litigation, told the Supreme Court judges the warning’s stipulation that a license will be “immediately” revoked upon refusal to take the test sends a clear message to drivers.  “That statutory prescription, essentially the General Assembly’s own summary, is a persuasive guide to interpreting what the legal consequences are of a refusal to undergo the test,” said Martinich-Sauter.

Carvalho argues that the Implied Consent Warning inaccurately states that the revocation consequences will begin “immediately”, noting that the revocation does not start until 15 days after the refusal.

Nathan Swanson of Rosenblum Schwartz & Fry argued on behalf of Carvalho before the Supreme Court.  He said Carvalho only consented to the breath test because he believed that refusing to do so would result in the immediate revocation of his license.  “He thought that there would not be a suspension that followed from his consent to a sample,” said Swanson.  “He was convinced that if he refused to give a sample, he would lose his license.  If he gave a sample there would be no action against him.”

The state counters that the rule requires the officer to immediately take possession of the driver’s license, but also requires the officer to “issue a temporary permit that’s valid for 15 days.  The state contends the issuance of this temporary permit does not alter the fact that the driver’s license is immediately revoked.

Finally, Carvalho argues that the Notice of Suspension which the arresting officer gives to a driver who’s breathalyzer test exceeds the legal limit is misleading. He contends it misled him as to the legal requirements for revoking his license and prevented him from making an informed decision on whether to challenge his license revocation.

The state claims the Notice meets its legal requirements. The state says it informs the arrestee that their license has been revoked, provides them with information on how to object to the action and request a hearing, and notifies them that they have 15 days to request a hearing. The state further contends that due process does not require that the arrestee be informed of what the Director of Revenue (who oversees license revocations) would have to prove at any subsequent hearing.

Carvalho counters that the Notice of Suspension is misleading. He claims that although it informs the driver that their license will be suspended because they were arrested for probable cause, it fails to inform them that they were also found to be driving, and the test result indicated a blood alcohol content greater than the legal limit. Carvalho contends a driver cannot make an intelligent decision as to whether to fight a government action if the driver is being intentionally misinformed about the government action.

The Supreme Court is considering Carvalho’s request to have his conviction reversed and his case sent back to the trial court.  The judges could hand down a decision at any time.