Missouri's drunk-driving prosecutor, who goes after regular folks for the same offense that is on his own record, is taking hypocrisy to new levels.
Nicholas Jain, assistant prosecuting attorney in Greene County, MO, is trying to get a DUI conviction in a case where the trial judge determined there was no probable cause and suppressed all evidence. Not content with that outcome -- even though it clearly was correct under Missouri law -- Jain (and his boss, Prosecuting Attorney Dan Patterson) sought to have it overturned.
In a ruling that suggests the Missouri Court of Appeals is controlled by political interests, a three-judge panel violated its own precedent and overruled the trial court. That means the driver, Charles Hollis Roux, faced a trial last week -- and he pleaded guilty to two counts, with the finding on a third count taken under advisement.
The record at case.net indicates Roux pleaded guilty to failure to register motor vehicle and failure to equip motor vehicle with two approved red tail lamps. The DUI charge is under advisement.
Jain and Patterson brought an "assault on a law enforcement officer" charge against my wife, Carol, without probable cause. They moved forward in the Roux case without probable cause -- and the Missouri Court of Appeals let them get away with it. That means they have a habit of ignoring the strictures of probable cause, and that should alarm everyone who lives in, or passes through, Greene County.
Court documents show the Roux charges properly were thrown out at the trial-court level. (Documents are embedded at the end of this post.) Here are two key points that Roux's attorneys -- Dee Wampler and Scott B. Pierson -- made in their Motion to Suppress:
1. The defendant did not violate any law, either misdemeanor or felony, in the presence of the officers that would warrant an arrest.
2. The defendant's behavior did not give officers reasonable suspicion that criminal activity was afoot, and therefore did not justify the subsequent search and seizure.
Amazingly, Roux was not stopped for erratic driving; he was stopped for not having his taillights on. As the motion states, there was no sign of criminal activity that would justify the search and seizure. Trial judge Margaret Palmietto has shown in Carol's case that she can make plenty of screw-ups. But she got it right on the suppression hearing in the Roux case, finding:
AFTER REVIEWING THE EVIDENCE PRESENTED AT THE HEARING, THE COURT FINDS THAT THE DEFENDANT FAILED TO TURN ON HIS TAIL LIGHTS ALTHOUGH HIS HEADLIGHTS WERE ON. THE OFFICER STOPPED HIM FOR FAILURE TO HAVE LIGHTED TAIL LIGHTS. THE OFFICER TESTIFIED THAT HE SMELLED THE ODOR OF INTOXICANTS COMING FROM THE VEHICLE AND THAT THE DEFENDANT HAD WATERY BLOOD SHOT EYES. THE DEFENDANT ADMITTED TO DRINKING TWO BEERS. AN OCCUPANT IN THE VEHICLE ALSO ADMITTED TO DRINKING ALCOHOL. THE DASH CAM VIDEO SHOWS THAT THE DEFENDANT WAS COOPERATIVE AND DID NOT STAGGER OR SLUR HIS WORDS. THE OFFICER ASKED THE DEFENDANT TO BLOW INTO A PBT BUT DID NO FURTHER INVESTIGATION AND DID NOT PERFORM ANY FIELD SOBRIETY TEST. THAT THE FACTS THAT DEFENDANT ADMITTED DRINKING, AND THE OFFICER TESTIFIED TO BLOOD SHOT WATERY EYES AND THE ODOR OF INTOXICANTS, ARE NOT SUFFICIENT TO ESTABLISH PROBABLE CAUSE TO BELIEVE THE DEFENDANT WAS IMPAIRED. THE COURT FINDS THAT A POSITIVE PBT IS ALSO INSUFFICIENT IN THE ABSENCE OF OTHER EVIDENCE OF IMPAIRMENT, TO ESTABLISH PROBABLE CAUSE TO ARREST DEFENDANT FOR DRIVING WHILE INTOXICATED OR TO COMPEL HIM TO SUBMIT BREATH TEST. THEREFORE, DEFENDANT'S MOTION TO SUPPRESS IS SUSTAINED.
The general rule in Missouri is that appellate courts defer to trial courts on issues of probable cause in DUI cases. From York v. Dir. of Revenue, 186 S.W. 3d 267 (Mo. banc, 2006):
The Supreme Court deferred to the circuit court's credibility determinations and found that the circuit court acted within its discretion when it ruled that the portable breathalyzer test evidence was not credible.
The Missouri Supreme Court in York upheld the trial court's finding of lack of probable cause to arrest for suspicion of DWI. Finding the mere fact that an individual has bloodshot, watery and/or glassy eyes, the smell of alcohol on the breath and admits to drinking does not require a finding of probable cause to arrest.
In other words, York and Roux were almost identical, and Palmietto's finding in Roux was in line with Missouri law. More relevant law comes from Stolle v. Dir. of Revenue, 179 S.W. 3d 470 (Mo. Ct. App., 2005):
The mere fact that a person has consumed alcoholic beverages at some undetermined point in time cannot give rise to probable cause that the person is intoxicated.
Finally, we have law from State v. Avent, 432 S.W. 249 (Mo. App., 2014):
Trial court's finding, in sustaining motion to suppress evidence obtained after an arrest for driving while intoxicated (DWI), that state failed to prove by preponderance of evidence that highway patrol officer had probable cause to believe defendant was intoxicated, was not clearly erroneous; while defendant was speeding, had some alcohol on her breath as confirmed by a portable breath test, and had admitted consuming some beer on afternoon in question, defendant had stopped car in controlled reasonable fashion and had promptly provided her license and registration.
The driver's actions in Avent were more serious than those in Roux -- Avent was observed speeding, while Roux was not observed committing any driving infraction. And yet, Roux wound up at trial, pleading guilty to two counts, while Avent had her motion to suppress upheld.
This goes beyond the court's failure to properly apply the law; it also shows the tendency for courts to produce results that are both unfair and inconsistent. The outcome in Roux is unjust and contrary to law on multiple levels, and we will address that in an upcoming post.
(To be continued)