May Newsletter (Issue 05-2019)

Privacy is Inherent in a Driver’s Statutory Right to Counsel
Facts and Procedure: Roesing was arrested for driving while intoxicated and transported to the police department, where an officer read him the implied consent law.  Roesing requested that he call an attorney and approximately one minute into the call, Roesing handed the telephone to the officer, and the attorney told the officer he wished to speak with Roesing in private.  The officer replied that it might be possible to arrange for the conversation to occur in another room, but it would be audio and video recorded.

The officer returned the telephone to Roesing.  Roesing’s conversation with the attorney continued in the officer’s presence and was audio and video recorded.  The officer stood approximately three feet from Roesing and could hear Roesing’s end of the conversation.  After 20 minutes had passed and the conversation had ended, the officer again read Roesing the implied consent law, and Roesing refused to submit to a chemical test.

The director revoked Roesing’s driving privileges and Roesing filed a petition with the circuit court for review of his driver’s license revocation.  Following an evidentiary hearing, the circuit court entered judgment sustaining the revocation of Roesing’s driving privileges.  Roesing appealed to the Missouri Supreme Court.

Analysis: This case presented the question of whether the right to attempt to contact an attorney pursuant to Section 577.041.1 included the right to speak to the attorney privately.  Section 577.04 1.1 provides: “If a person when requested to submit to any test allowed … requests to speak to an attorney, the person shall be granted twenty minutes in which to attempt to contact an attorney.” (Emphasis Added)

The Court noted that Missouri case law holds that the purpose of Section 577.041.1’ is “to provide the driver with a reasonable opportunity to contact an attorney to make an informed decision as to whether to submit to a chemical test.”  In addition, when a driver conditions a refusal on consulting with an attorney, but is not given a reasonable opportunity to do so, the driver is not deemed to have refused to submit to a chemical test for purposes of license revocation.

The Court reasoned that the purpose of providing the driver with an opportunity to make an informed decision is based upon candidly disclosing all necessary information to receive the appropriate advice.  A driver is not free to speak candidly with his attorney regarding potentially incriminating evidence when there is a possibility that anything said can be shared with the prosecuting attorney who will decide whether to bring criminal charges.  The Court concluded, that the legislature could not have logically intended that Section 577.041.1 requires nothing more than allowing a driver 20 minutes to attempt to contact an attorney. “Privacy is inherent in a driver’s statutory right to counsel.”  To conclude otherwise, would create absurd results. Roesing v. Director of Revenue, (SC97165, 04/30/19).

Comment Howard: This was a 4 to 3 decision with the dissent arguing vigorously that the statute only provided the right to contact attorney and that the majority opinion was writing the law instead of relying on the words used by the legislature.  The minority position was that contact means just that, nothing more, which is literalism in the extreme I find it extremely difficult to conclude an attorney’s conversation is not private when the Legislature has clearly provided for the right to contact an attorney. Obviously, the right is rendered meaningless if you cannot have a frank discussion with your attorney when the police can listen to your end of the conversation because that right is based upon a frank discussion, which could include such topics as the amount of alcohol what you drank, the amount of time that passed since you consumed alcohol, the amount of food you eat and when, whether or not you were driving intoxicated and other similar matters, which if overheard could constitute admissions that could be used against you in court.

Missouri Supreme Court Considers Ethics Case Involving Ex Parte Communications To A Client Represented By Another Attorney
The April 15, 2019, edition of Missouri Lawyers Weekly, has a very interesting/important article, concerning ex parte communications by Jerome Dobson, a prominent employment law attorney, in St. Louis, who communicated with officials of Washington University.  This occurred after being advised by the General Counsel for Washington University that all communications about the legal matter should be sent to the General Counsel.  Despite this warning, Dobson continued to communicate, directly to officials of the University, not withstanding the request to not communicate on numerous occasions.

The General Counsel, for Washington University, filed a complaint with the Office of Chief Disciplinary Counsel (OCDC), for three litigated related letters that Dobson had written to officials at Washington University.  It alleged that Dobson violated Missouri Supreme Court Rule 4-4.2, which provides that in representing a client, a lawyer should not communicate about the subject of representation when a lawyer knows that person is represented by another lawyer in the matter, unless he or she has consent of the other lawyer or is authorized to do so by rule or court order.  Dobson argued that this was allowed under exigent circumstances because there was a need to protect his client’s reputation due to the dissemination of a letter, suspending his client, that had an immediate and adverse effect on his client’s reputation with his peers.

The matter was fully litigated in a hearing before the OCDC, with a panel ruling that Dobson did not engage in conduct that was prejudicial to the administration of justice.  The OCDC appealed the decision to the Missouri Supreme Court, which recently heard oral arguments.  This matter is of great interest to local government lawyers, because it is not uncommon for aggressive lawyers to directly communicate with our clients.  In my opinion, this was a blatant violation of the Ethics Rule prohibiting such ex parte communications and should be stopped.  Here’s hoping that the Missouri Supreme Court will take a much different view than the OCDC.

Separation of Powers Provision In Missouri Constitution Prohibits Legislature From Reducing Appropriations Designated To Eliminate One Particular Administrative Law Judge
Facts and Procedure: Rebman is an Administrative Law Judge (ALJ) employed by the department of labor and industrial relations.   ALJs preside over claims filed under the workers’ compensation laws and have statutory authority to enter awards and approve settlements.  Although serving in a decision making role, ALJs are employees of the executive branch of government, not the judicial branch.  As such, authority to appoint and remove ALJs is vested solely in the director of the department of labor and industrial relations (“the director”).  Rebman was appointed as an ALJ in 2013.  While the department is authorized by statute to appoint up to 40 ALJs, the number of ALJs the department actually employs depends on the amount of funding for ALJ salaries appropriated by the general assembly each year.

Section 287.615.1(1) sets ALJs’ compensation at 90 percent of an associate circuit judge’s salary.  In 2017, the Missouri General Assembly appropriated sufficient funding to pay the salaries of 28 ALJs.  In 2018, the general assembly reduced the total appropriation for ALJ salaries by providing sufficient funding to pay the salaries of only 27 ALJs.  In addition to reducing the total appropriation for ALJ salaries, the general assembly placed restrictions on how the appropriated funds could be used.  Specifically, HB2007 provided the funds appropriated for the payment of ALJ salaries could be used to pay only the salaries of ALJs appointed before 2012 and after 2015. The statute specifically appropriated $2,480,240 “[f]or the purpose of funding Administrative Law Judges appointed on or prior to January 1, 2012,” and $859,334 “[f]or the purpose of funding Administrative Law Judges appointed on or after January 1, 2015.”  Rebman was the only ALJ appointed between 2012 and 2015.  The director of the division of workers’ compensation (“division director”), therefore, informed Rebman his employment as an ALJ would be terminated when the funding for fiscal 2017 expired because the funding restrictions contained in HB2007 prevented the department from using its appropriated funds to pay his salary.

Rebman filed a declaratory judgment action on June 7, 2018, seeking a declaration that the funding restrictions contained in HB2007 were unconstitutional and a TRO and a permanent injunction to prevent the State from terminating his employment as an ALJ.  The circuit court ultimately entered judgment in favor of Rebman, declaring HB2007 unconstitutional to the extent it restricted the use of funds appropriated for the payment of ALJ salaries based on an ALJ’s date of appointment and permanently enjoining the State from terminating Rebman’s employment pursuant to the unconstitutional funding restrictions.  The State appealed to the Missouri Supreme Court.

Analysis and Issue: The Court described the central issue as: whether or not an appropriation statute that precludes the director of the department of labor and industrial relations from exercising discretion over certain personal choices, which effectively required termination of a specific Administrative Law Judge violated the separation of power provision in the Missouri Constitution, which reads as follows:
The powers of government shall be divided into three distinct departments, the legislative, executive and judicial, each of which shall be confided to a separate magistracy, and no person, or collection of persons, charged with the exercise of powers properly belonging to one of those departments, shall exercise any power properly belonging to either of the others, except in the instances in this constitution expressly directed or permitted.

Missouri Separation of Powers: The Court, after laying the groundwork for understanding the separation of powers into executive, legislative and judicial branches, based upon similar provisions in the United States Constitution, the Court reasoned as follows.  First, all revenues collected by the state go into the state treasury, subject to the provisions that the general assembly shall have no power to divert the same or permit the withdrawal of money from the treasury, except in pursuit of an appropriation made by law.  Even though, the power of the purse is particularly strong it is not unlimited.  The general assembly may not use this appropriation authority to encroach on powers vested solely in the separate, coequal branches of government.

In this case, the appropriation by the general assembly specifically directed that the money to pay the Administrative Law Judge’s salaries be used only for judges appointed prior to January 1, 2012, or after January 1, 2015; thereby precluding Rebman because he was the only ALJ appointed between 2012 and 2015.  This as the Director noted, required him to terminate Rebman.  The Court noted, that the Missouri Constitution vested the power to “select and remove all appointees in the department,” except for the head of each department.  Consequently, on its face, the appropriation effectively limited the power of the executive branch to make the appointment, thereby violating the separation of power concept in the Missouri Constitution.  The Court further reasoned that while the general assembly may determine how many ALJs are to be funded, it cannot single out one employee for termination in an appropriation since the power to appoint and remove ALSs was vested in the executive branch.  Rebman v. Parson, (SC97307, 04/16/19)

Comment Howard: It is hard to recall a recent Missouri case on separation of powers. This case clearly stands as a classic with respect to its analysis of the Missouri Constitution with respect to separation of powers.  This case also has particular significance since local government officials on occasion are confronted with the legislative branch zeroing out an appropriation for an employee.  Also it is not unheard of for local government to limit the discretion of its executive by use of appropriations, which may be proper provided it does not encroach upon the executive power of the mayor or the chief executive.  Of course, this will depend on how the statute controlling local government or the charter designates who holds certain powers.  One known tactic employed by local officials in deal with troubling employees is to simply zero out the appropriations for that employee.  In light of this case, that practice may require closer examination.

Taxpayer Standing To Challenge Appointment And Meaning Of The Phrase “By Law”
Facts and Procedure: Michael L. Parson previously served as Missouri’s Lieutenant Governor, an office he held until the resignation of Governor Eric Greitens, when he succeeded Greitens to the office of Governor, leaving the office of Lieutenant Governor vacant.  Governor Parson appointed Mike Kehoe to be the Lieutenant Governor.  The day of Kehoe’s appointment, Cope and the MDP filed a petition seeking injunctive and declaratory relief against Governor Parson and Kehoe in the circuit court of Cole County.  The petition alleged Governor Parson lacked legal authority, per § 105.030, to appoint a Lieutenant Governor and that the office must remain vacant until the next general election in 2020.

Governor Parson and Kehoe filed a motion to dismiss the petition claiming a private litigant does not have the authority to remove the Lieutenant Governor from office because Cope and the MDP lacked standing to assert their claims, and that the Governor has the authority to appoint a Lieutenant Governor under Article IV, § 4 of the Missouri Constitution.  The circuit court sustained the State’s motion to dismiss, concluding Cope and the MDP did not have associational or taxpayer standing to challenge Governor Parson’s appointment of Kehoe.  Cope and the MDP filed a direct appeal to the Missouri Supreme Court.

Analysis and Standing: The Court reasoned that in order to have standing for a declaratory judgment, the petitioner must have a legally protectable interest at stake in the outcome of the litigation.  This exists “if the plaintiff is directly and adversely affected by the action in question or if the plaintiff’s interest is conferred by statute.” Cope alleged that he had standing as a taxpayer of the state of Missouri.  Taxpayers have a legally protectable interest in the proper use of tax dollars.  The appointment to fill the Lieutenant Governor will result in expenditure of taxpayer’s money, which would not otherwise occur if the appointment is illegal; therefore, Cope had standing as a taxpayer.

Authority of the Governor to Make Appointment: The Missouri Constitution provides: “The governor shall fill all vacancies in public offices unless otherwise provided by law …” (emphasis added).

Section 105.030 provides in pertinent part:

Whenever any vacancy, caused in any manner or by any means whatsoever, occurs or exists in any state or county office originally filled by election of the people, other than in the offices of lieutenant governor, state senator or representative, sheriff, or recorder of deeds in the city of St. Louis, the vacancy shall be filled by appointment by the governor…

Cope’s argument was that the state statute (above) specifically precluded the governor from appointing a person to a vacancy of the lieutenant governor because it fell within the term “…unless otherwise provided by law …”in the Missouri Constitution.

The Court described the crux of the issue in this case as what was intended by the phrase “unless otherwise provided by law.”  The phrase “otherwise provided” was interpreted by applying the ordinary dictionary meaning concluding that “otherwise” means “in a different way or manner “and that the word “provide” names to “supply for use.”

The Court resolved the conflict between the Constitution and state statute by concluding that the state statute does not provide how the vacancy shall be filled; therefor, it failed to meet the requirement in the Constitution because the statute did not specify how the vacancy should be filled.  The express provision in Article IV, § 4 providing for the power to appoint cannot be abrogated by mere implication. The uninterrupted functioning of the government was recognized as a vital end.  Cope v. Parson, (SC97284, 04/16/19)

Comment Howard: There are a lot of good lessons in this case for local government lawyers.  I thought that taxpayer standing question would be a harder hurdle than the court’s resolution of this issue, which was very straightforward.  If you are challenging an appointment to office, where the lack of an appointment leaves  a vacancy, there is `taxpayer standing because taxpayer dollars are at issue.  I also liked the argument that public policy dictates that vacancies be filled and lacking any clearly defined guidelines an appointment to the vacancy should be made.

There was also a concurring and dissenting opinion in this case.  I always thought that the phrase “was otherwise provided by law” included statutes and maybe even ordinances, which is what the dissent argued, citing numerous cases to support that interpretation.  Now I know where to go to find those cases but I will have to distinguish this case from the one cited by the dissent.  I agree with the dissent in that the court really failed to address the fundamental question by failing to deal with what is meant by the phrase “unless otherwise provided by law.”

Springfield Wins “Free the Nipple” Case
Facts and Procedure: In August 2015, Free the Nipple – Springfield Residents Promoting Equality and two of its members, Jessica Lawson and Amber Hutchison (collectively referred to as FTN), organized a protest to raise awareness about Springfield’s indecent exposure ordinance.  The protestors were topless, except for opaque black tape covering their nipples.  A month later, the City Council enacted a stricter indecent exposure ordinance and FTN sued the City to overturn it.  In March 2016, the City repealed the September 2015 ordinance and replaced it with this ordinance:

(a) No person shall engage in or commit any act of indecent exposure or conduct in place open to public view. (b) “Indecent exposure or conduct” shall include: (1) The exposure of the male or female genitals, pubic area, or the female breast with less than a fully opaque covering of any part of the areola and nipple, or the showing of the covered male genitals in a discernibly turgid state.

(c) Exceptions. (1) This section shall not prohibit performances of adult entertainment in compliance with section 10-7.  (2) This section shall not regulate nudity when the conduct of being nude cannot constitutionally be prohibited by this section because it is otherwise protected by the United States Constitution or Missouri Constitution.  (3) This section shall not prohibit a mother from breast-feeding her child or expressing breast milk in any public or private location where the mother and child are otherwise authorized to be.

FTN and the City moved for summary judgment on the equal protection challenge.  The district court granted summary judgment to the City relying on an earlier 8th Circuit decision in Ways v. City of Lincoln, concluding that the gender-based classification was related to the City’s legitimate interest in prohibiting nudity and promoting morality.  FTN appealed to the 8th Circuit arguing that the district court erred by misapplying the heightened scrutiny standard and ignoring admissible evidence showing that the law is based on impermissible stereotypes.

Analysis: The Eighth Circuit concluded that the Springfield ordinance was almost identical to the ordinance in Ways.  Springfield regulated adult entertainment in a separate ordinance.  Nevertheless, it still had an interest in regulating nudity in public places.  The court’s equal protection analysis in Ways did not turn on the exceptions in the ordinance or the evidence (or lack thereof) produced by the parties about the similarities or differences between men and women’s breasts.  Ways is not distinguishable  from the Springfield ordinance; therefore, it was a valid ordinance protecting the City’s legitimate interest in prohibiting nudity and promoting morality. Free the Nipple  v. Springfield, (8th Cir., 17–3467, 05/06/19)

Comment Howard: The copycat strategy in this case was simple and very effective. When sued check your ordinance against case law and if there’s any question simply modify the existing ordinance based upon a case that has already been upheld.  Don’t be afraid to use this strategy because it has worked for many local government agencies helping to avoid unnecessary court costs and attorneys fees.

No Cause of Action for Negligent Recommendation to Another Employer
Facts and Procedure: John Doe (“Plaintiff”) filed a negligence action against Ozark Christian College (“OCC”) claiming that OCC negligently recommended a prospective employee (“Employee”) to the employer church (“Employer”) and as a direct result Employee injured Plaintiff.  The trial court entered summary judgment in favor of OCC, concluding that Missouri has not defined or recognized a “duty to not make a negligent recommendation to a prospective employer.”  Plaintiff appealed to the Southern District

Analysis: The Plaintiff argued that the OCC had a duty to make a recommendation to provide a prospective employer that was not negligent and that this duty was breached because the OCC knew or had reason to know that its recommendation involved an unreasonable risk of injury to the prospective employer or third party.  The Southern District first noted that, Missouri has not recognized a claim for a negligent recommendation and that the Missouri Courts of Appeals is an “error correcting court” while the Missouri Supreme Court is a “law declaring court,” declining to adventure beyond its error correcting role.  Furthermore, the Plaintiff failed to properly plead that the OCC undertook “to render services to another,” which is required under Section 324A of the Restatement of Torts, in order to state a cause of action.  In addition, the pleadings of the Plaintiff did not support an inference that OCC assumed an obligation, intended to benefit an employer when it came its recommendation.

While this was a per curium opinion, Judge Lynch wrote a concurring opinion stating emphatically that Plaintiff had totally failed in its argument by not citing any case from any court in the nation that had addressed or considered, much less applied, Section 342A to impose a duty of care to a party upon a person or entity making an employment recommendation to a prospective employer.  John Doe vs. Ozark Christian College (SD35573, 04/05/19)

Comment Howard: For now, local government officials can breathe easy, although it’s fair to say that the Plaintiff has set this case up to go to the Missouri Supreme Court, to determine if it should create a new cause of action based upon a negligent recommendation by adopting Section 342A of the Restatement of Torts.  Stand by.  The Court and Plaintiff agreed that it is also very clear that employers had a choice as to whether not to even make a recommendation and that they were protected if they did nothing.

In today’s litigious environment most employers simply refuse to give any recommendation to a prospective employer, whether it is positive or negative, in order to avoid litigation including claims of retaliation.  In this case, OCC was providing education and training to future ministers that involved an ongoing intern program.  It is hard to imagine that the OCC program would attract many students if they had an across the board  policy of not recommending  any students/interns.  Lawyers  Weekly reported that OCC had recommended Butler to be a pastor of a church knowing that Butler had previously resigned from another church after facing an allegation of sexual misconduct against a minor.  Passing one’s garbage on to another employer is a matter that might get attention in the Supreme Court.

Contempt Citation Ordering Contemnor To Jail Upheld
Facts and Procedure: County of Boone v. Reynolds, involved a contempt citation where Reynolds an adjoining property owner constructed a detached accessory building, satellite dish and privacy fence on County right-of-way without a building permit that was also in violation of the setback requirements in the zoning code.  After several letters from the County demanding that Reynolds remove the encroachments and a denial of request before the board of adjustment the county brought a mandatory injunction requesting that Reynolds be ordered to remove the encroachments.

The circuit court granted the injunction and ordered Reynolds to remove the encroachments, which Reynolds appealed and lost, which was a case that was previously reported in the Newsletter.  After several years of back-and-forth with representations and false statements by Reynolds the Circuit Court had enough and issued a contempt citation for failure to remove the encroachments.  When this did not work the court held Reynolds in contempt and ordered him jailed until he purged himself from the contempt citation.  The trial court found that Reynolds had the financial ability to comply and his efforts to purge himself of the contempt citation were insufficient and were not taken in good faith.  Reynolds appealed the trial court’s decision to the Western District.

Analysis: Since the trial court found that the earlier order was final and non-appealable the only issue in this case was whether or not the County established a prima facie showing of civil contempt.  In order to show civil contempt, the  County was required to show that Reynolds failed to perform the action required by the court’s judgment and his failure to meet that obligation.  Under the law, once a prima facie case has been proven, the contemnor has the burden of proof to show that the failure to act was not intentional and not due to his contumacious conduct.  The record showed that Reynolds financially had the financial ability to pay for the removal of the physical structures and lied to the court about his assets, like contending that there was a mortgage on his property, when there was not.  County of Boone v. Reynolds, (WD82353, 04/23/19)

Comment Howard: Even though no great principles of law were decided in this case, it is noteworthy for illustrating the simplicity of a contempt citation, once an order has been granted requiring action.  Haven’t seen one of these before.  Nice job and for once the good guys win.

Everything You Wanted to Know About Forced Blood Draws and Search Warrants

Introduction: The opinion in State of Missouri v.  Osborn,  is a judicial masterpiece, providing the reader with a complete update of both federal and state law, pertaining to forced blood draws without a search  warrant,  to test for blood alcohol content.  This case is important because it clarifies some issues  with respect to forced blood draws made without  a search warrant in felony cases and  provides important insights about forced blood draws in civil cases.

Facts and Procedure: On the evening of February 19, 2015, a mother and daughter were waiting at a red light on a highway exit ramp.  The light turned green, and the mother proceeded to turn left when a car driven by Nathanael Osborn ran a red light at the intersection and struck her car.  Both cars were spun around in the collision. Because Osborn may have been intoxicated, Officer Nathan Turner, a member of the driving while intoxicated unit, was dispatched to the accident to assist in the investigation.

Because Osborn had already been transported to the hospital Officer Turner first contacted Osborn at the hospital approximately forty-five minutes after the accident had occurred.  Osborn was initially unresponsive to both medical personnel and Officer Turner, but he began responding to Office Turner after a few minutes.  Osborn’s tongue had been injured in the collision, which made it impossible for him to speak intelligibly, so Officer Turner asked Osborn to respond to his questions with a “thumbs up” for “yes” and a “thumbs down” for “no.”  When Officer Turner asked Osborn if he had been drinking, Osborn made a hand gesture which Officer Turner interpreted to mean “just a little bit.”  Officer Turner then asked Osborn if he would consent to a preliminary breath test.  Osborn responded with a “thumbs up.”  Osborn’s preliminary breath test indicated the presence of alcohol.  Officer Turner testified that at this point he believed Osborn had intoxicants in his system, and he left the hospital room to contact his supervisor.

After Officer Turner left the room to consult with his supervisor, Osborn was taken from the room for medical treatment.  Officer Turner again made contact with Osborn after he was returned to the room, roughly an hour after their initial interaction. Officer Turner had decided that he was going to place Osborn under arrest for driving while intoxicated, and he was going to read Osborn the implied consent law before requesting a blood sample.  However, Osborn was once again unresponsive to both Officer Turner and medical personnel.  Because Osborn was unresponsive, Officer Turner did not read the implied consent provision, but instead he asked a nurse to obtain a blood sample.  Subsequent testing of this sample by the Missouri Highway Patrol indicated that Osborn’s blood alcohol content (“B.A.C.”) was .161.  As part of his investigation, Officer Turner later obtained a search warrant for the hospital’s own emergency records which included a toxicology report indicating the alcohol level in Osborn’s blood.

Osborn was charged with two counts of assault in the second degree under Section 565.060.  Osborn moved to suppress evidence of the warrantless blood draw conducted by Officer Turner.  At the evidentiary hearing, the foregoing evidence was adduced.  In her argument before the trial court, the prosecutor made no mention of exigent circumstances or any other exception to the warrant requirement.  Rather, the prosecutor argued that the warrantless search was justified by Missouri’s implied consent laws.

Osborn argued that he did not consent to the search, that it was unlawful and violated his constitutional rights, and that it did not fit within any exception to the warrant requirement.  The trial court overruled the motion to suppress.  Osborn was later found guilty by a jury and in his motion for a new trial he argued that the court erred in allowing evidence of the warrantless blood draw.  The motion was denied, and an appeal was filed with the Western District.

Analysis and Constitutional Argument: The Court first addressed the validity of a blood test taken without a search warrant under the Fourth Amendment prohibiting unreasonable searches.  The Court noted that in Schmerber v. California, the United States Supreme Court held that a blood draw is a search under the Fourth Amendment requiring a warrant.  However Schmerber also held that “special facts” (exigent circumstances) justified the warrantless search.

In this case, (Osborn), the court noted that there was no evidence of exigent circumstances offered by the State.  The record was therefore void of any explanation for Officer Turner’s failure to attempt to secure a warrant before ordering a blood draw from Osborn.  In addition, the Missouri Supreme Court in McNeely, held that in order to justify a warrantless search, something beyond the natural dissipation of alcohol in a suspects bloodstream is necessary to constitute exigent circumstances. Therefore, the trial court’s denial of Osborn’s motion to suppress and its related admission of B.A.C. evidence at trial over Osborn’s objection, was clearly erroneous in light of the holdings in the McNeely cases.

Statutory Argument  – Implied Consent : The state also argued that the McNeely cases do not control the admission of B.A.C. evidence from a warrantless blood draw because Missouri statutes control this issue.  The state relies on Sections 577.020 and 577.033 to argue that warrantless blood draws are authorized by Missouri’s implied consent laws.  Section 577.020 states that individuals operating vehicles on public roads are deemed to have consented to “a chemical test or tests of the person’s breath, blood, saliva, or urine for the purpose of determining the alcohol or drug content of the person’s blood” in the event they are arrested on suspicion of driving while intoxicated or they are involved in a traffic accident involving a “readily apparent serious injury” or fatality.

Section 577.033 states:

Any person who is dead, unconscious or who is otherwise in a condition rendering him incapable of refusing to take a test as provided in Sections 577.020 to 577.041 shall be deemed not to have withdrawn the consent provided by Section 577.020 and the test or tests may be administered.  The plain language of these statutes deems consent to have been afforded for a warrantless blood draw from an unresponsive subject.  That does not, however, insulate the statutes from constitutional scrutiny

Section 577.033 has been previously cited in State v. Clark with approval to affirm a criminal conviction based in part on the admission of blood-alcohol evidence from a warrantless blood draw taken from an unresponsive subject; however, the Court considered this holding suspect in light of subsequent cases in Missouri and United States Supreme Court.  Consequently, the Court overruled State v. Clark, while making it clear that it’s ruling in Osborn was limited to criminal cases.  In doing so, the Court was very careful to differentiate between reliance on implied consent laws to invoke civil versus criminal penalties.

It is well established that a search is reasonable when the subject consents, and that sometimes consent to a search need not be express but may be fairly inferred from context.  Our prior opinions have referred approvingly to the general concept of implied consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply.  Petitioners do not question the constitutionality of those laws, and nothing we say here should be read to cast doubt on them.

The Court concluded that there was no basis grounded in settled appellate law to support affording Officer Turner’s warrantless search protection from application of the exclusionary rule based on the good faith exception.  Furthermore, the independent source rule and the inevitable discovery doctrine exceptions are not applicable in this case.  State of Missouri v.  Osborn, (WD809959, 04/16/19).

Comment Howard: This case upended some of my thinking with respect to forced blood draws.  I assumed that there was absolutely no question that a forced blood draw, to obtain a sample of a blood alcohol content of a person charged with a felony, required a search warrant, so I was surprised that there were some loose strings that needed to be resolved.

With respect to civil matters, I assumed that a search warrant was also required, so I was also surprised, to learn that there is still an open question as to whether or not a search warrant is required in a civil matter.  Still, it seems that good practice in civil matters requires that, if at all possible, a search warrant be obtained and if not the prosecutor or the state must be prepared to make a record and be prepared to argue exigent circumstances.  In this case, the prosecutor not only failed to argue exigent circumstances but also totally failed to prove the evidence supporting a collateral source to get the evidence admitted showing the driver was intoxicated.

No Due Process Violation By Failure Of State Trooper To Appear For Cross Examination
Facts and Procedure: A Missouri State Trooper (Trooper) stopped Ridgway in St. Charles for driving 38 miles per hour over the posted speed limit of 60 mph.  The Trooper arrested Ridgway for driving while intoxicated.  Ridgeway consented to and was given a blood alcohol test, which showed that his blood alcohol content was 0.134%.  The Trooper then revoked his license and the Director of the Department of Revenue (Department) notified Ridgeway that his license would be suspended or revoked on May 20, 2016.  Ridgeway filed his petition for Trial De Novo in the trial court to reinstate his driver’s license.

Between the arrest and the ensuing litigation, the Trooper left his employment with the Missouri State Highway Patrol and obtained employment with the Federal Bureau of Investigation.  As an FBI agent, the Trooper was sent on a traveling assignment outside of the state of Missouri.  The trial was scheduled for July 14, 2016.  The trial court repeatedly rescheduled the trial for over a year as the parties repeatedly sought to serve a Missouri subpoena on the Trooper to compel his attendance at trial, but the Trooper was never served.  The Trial Court rescheduled the trial one final time on December 14, 2017, stating, “the case will be tried or dismissed on” on February 8, 2018.  On February 8, 2018, Ridgway’s attorney announced he was present and ready. Department’s attorney announced she was present but not ready because “we can’t get our witness [the Trooper] here.”  Ridgway presented a Missouri subpoena seeking to compel the Trooper’s attendance at trial and a sworn statement from the officer of the court showing that he attempted to serve the Defendant that explained why he was not served.

The Trial Court admitted into evidence the Department’s certified records under Section 302.312 RSMo, without objection.  The Department’s certified records identified Trooper’s statements, including: Ridgway had slurred speech, uncertain balance and a swaying walk, and glassy, bloodshot, and watery eyes; the vehicle and his breath smelled strongly of alcohol; and statements by Ridgway he was coming from “the after party” where he “had a couple of Crown and Cokes.”  The certified records indicate Ridgway failed the Horizontal Gaze Nystagmus field sobriety test.  Ridgway consented to a preliminary breath test, which detected the presence of alcohol in excess of the legal limit.  Due to extreme weather conditions, the Trooper did not request Ridgway perform Walk and Turn and One Leg Stand tests because it was too cold and windy.  The Department’s certified records contained a certification of Field Sobriety Test Training and an attestation under penalty of perjury, signed by the Trooper.  The records also reflect Ridgway was observed and tested approximately 44 minutes after his arrest with a valid breath sample obtained by consent indicating 0.134% blood alcohol concentration

Since the Trooper was not present, the Trial Court noted that the nonpresence created a “credibility problem” as to Exhibit A and took the case under submission.  Ridgway did not testify.  The Trial Court’s Findings of Fact, Conclusions of Law, and Judgment found in favor of Ridgway and ordered Department to reinstate his driving privileges and clear his driving record of the January 9, 2016 arrest.  The Trial Court found Ridgway sought to subpoena the Trooper to attend the trial as a witness, attempting service personally and through his new employer, the FBI.  The witness stated the subpoena must be served through the FBI, and the FBI would not accept service because the subpoena did not relate to his work with FBI.  The Trial Court found a due process violation, given the inability to cross-examine the Trooper regarding the content of the Department’s certified records.  The Department appealed to the Eastern District.

Analysis: Probable Cause Established by DOR Records: In order to suspend or revoke a license the Department must show that there was probable cause that the driver was arrested for driving while intoxicated.  The Department argued that the trial court erred by disregarding the contents of the DOR records and misapplied the law in refusing to give any weight the contents of the certified records, under Section 302.312.1:

Copies of all papers, documents, and records lawfully deposited or filed in the offices of the department of revenue or the bureau of vital records of the department of health and senior services and copies of any records, properly certified by the appropriate custodian or the director, shall be admissible as evidence in all courts of this state and in all administrative proceeding

The Court held that the evidence submitted in this case, pursuant to the above statute, was sufficient to establish that the Trooper had probable cause to arrest the driver for driving while intoxicated.

Due Process Violation: With respect to the due process argument, that defendant was denied the right to confront and cross-examine the Trooper, the Court noted that the Sixth Amendment, right to confront witnesses, applied only in criminal cases, not civil cases.  In addition, the case cited by Ridgeway can be distinguished because Missouri law allows the Trial Court to give the evidence reduced weight when the witness Trooper does not appear to testify.

Furthermore, under Missouri law, the Court noted that there is no authority to impose a sanction or remedy for the non-attendance of the witness without a determination that the witness was duly summoned and served a validly executed subpoena to appear before the trial court; therefore the Court noted that Ridgeway’s argument, that he was denied due process because he could not confront and cross-examine the Trooper, had no merit.  Ridgeway vs. Director of Revenue,  (E.D. 106535, 04/16/19)