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.
