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Supreme Court reverses Witt

Judge has been overturned in six of
seven appeals on DWI-related cases

by Ivan Foley
Landmark editor

The Missouri Supreme Court has ruled that a Platte County Circuit Court judge erred in his decision to give a man back his driver's license after the man's arrest for drunken driving.

In a ruling handed down last week in a case that dates back to 2001, the state's highest court reversed the decision made by Judge Gary Witt, who had reinstated the driver's license of Mark Verdoorn after Verdoorn had been arrested for driving while intoxicated in Platte County.

Last week's ruling is the latest in a series of decisions by appeals courts that have gone against Witt in his handling of matters related to several driving while intoxicated cases.

A check of the web site for the Western District of Missouri Court of Appeals shows seven times Witt's rulings on DWI cases have been appealed. His decisions have been overturned in six of those seven cases.

State law permits the department of revenue to suspend or revoke the driver's license of any person arrested upon probable cause of driving while intoxicated. An aggrieved driver can seek a hearing—known as a trial de novo—to appeal that action, and that's what occurred in the Verdoorn case.

At that trial de novo, the "burden of proof" is on the director of revenue to establish grounds for the suspension, supported by evidence that the driver was arrested upon probable cause for the DWI and that the driver's blood alcohol content exceeded the legal limit.

At a hearing in Platte County, the director of revenue presented evidence showing the deputy had probable cause to believe Verdoorn was driving while intoxicated and that his blood alcohol content (BAC) exceeded the legal limit.

Verdoorn presented an expert toxicologist and pharmacologist who testified that it was equally likely that Verdoorn's BAC was above or below the legal limit.

Judge Witt reinstated the driver's license. The director of revenue appealed the decision, saying Verdoorn failed to adequately rebut the evidence that he was driving while intoxicated. The court of appeals overturned Witt's decision.

Apparently since the decision made by the western district court of appeals would only pertain to the state's western district, the director of revenue then applied for transfer of the case to the Supreme Court, seeking a ruling that would get the law clearly interpreted, and a ruling that would stand throughout all districts of the state.

The Supreme Court agreed to look at the case, and in its decision last Tuesday unanimously agreed with the director of revenue and reversed Witt's ruling.

A significant amount of information on the case is available on the Missouri Supreme Court's web site.

Phone messages left with Witt's office seeking comment on the matter had been unreturned at press time.

CASE HISTORY

On March 29, 2001, a deputy stopped Verdoorn after he noticed Verdoorn's vehicle swerving. The deputy smelled alcohol and noticed that Verdoorn's eyes were bloodshot and watery. Verdoorn admitted he had had a couple of beers, failed all three field sobriety tests he took and registered a .126 percent blood alcohol content on a breath test.

Verdoorn was arrested for DWI and the director of revenue suspended Verdoorn's driver's license.

Verdoorn sought a trial de novo to appeal his driver's license suspension. At that hearing, Verdoorn presented a "metabolic curve" defense supported by the deposition testimony of Dr. William Watson, an expert witness on toxicology and pharmacology.

Watson made an assessment of Verdoorn's blood alcohol content in light of undisputed facts showing Verdoorn started drinking at about 1:15 a.m. and drank as rapidly as one beer every five minutes up until the time his vehicle was stopped at about 1:40 a.m.

Based on the nature and timing of this "binge drinking," Watson testified "to a reasonable degree of toxicological certainty" that Verdoorn's blood alcohol contest was "lower than .126 grams percent and in fact could have been either above or below .10 grams percent" at the time he was stopped.

Upon further questioning, Watson testified it was "equally likely Verdoorn's BAC was above or below" the legal limit of .10%

(EDITOR'S NOTE: The state's legal limit has since been lowered to .08%).

The director objected to the expert's deposition testimony as "immaterial, irrelevant and based on vast speculation of certain crucial variables."

Witt overruled the objection and admitted the deposition testimony. The director presented no additional evidence, but argued in closing that Verdoorn "did not meet his burden."

Witt entered judgment reinstating Verdoorn's driver's license.

POINT ON APPEAL

The director's sole point on appeal was that the circuit court judge erred in granting the license reinstatement because Verdoorn failed to adequately rebut the evidence that he drove while intoxicated. The director maintained Witt's action was against the weight of the evidence and an erroneous application of the law.

The director argued Verdoorn could only rebut with a "preponderance of evidence" showing that his BAC was less than .10%.

Based on this preponderance standard, the director cited several recent cases in which an expert's testimony that a driver's BAC "may have been" below the legal limit was held insufficient to rebut a prima facie case for suspension.

In studying Verdoorn's rebuttal evidence, the court said Verdoorn presented no evidence that his blood alcohol concentration was in fact below the legal limit at the time he was stopped.

"The expert's testimony showed only that Verdoorn could have been intoxicated or that his blood alcohol concentration might not have reached the limit of .10% by the time he was stopped. This inconclusive testimony was insufficient to rebut the presumption of intoxication established by the director's prima facie case. The judgment (by Witt) is reversed," the court opinion states.