Last week came news that the Michigan State Police had written a letter to all law enforcement agencies and prosecutor’s offices in Michigan to inform them of flaws with breath tests used in conjunction with DWI investigations in Michigan. A local St. Louis connection has been exposed as a major part of the problem with the Michigan breath testing machines. The machines at issue were manufactured by Intoximeters right here in St. Louis. A total of 203 Datamaster DMT machines manufactured by Intoximeters have been taken out of service in Michigan since the initial letter was sent by the Michigan State Police.

This issue has more than just a local manufacturing tie to the St. Louis area. Many law enforcement agencies in St. Louis and throughout Missouri utilize breath test machines manufactured by Intoximeters. To this point, law enforcement agencies in Missouri have not acknowledged any potential issue with the Intoximeter devices. The Michigan State Police letter did not specify the issues that had been identified with the Intoximeter devices, but any issue that took 203 devices out of service should be a cause for concern for law enforcement agencies using devices manufactured by the same company.

Small Issues Result in Big Consequences

Small issues with a breath test machine can lead to great consequences for people who blow into those machines during a DWI investigation. Many people forget that drinking and driving is legal. It is one hundred percent legal to go to a bar after work and have a drink or two, then drive home, as long as you are not intoxicated. The 0.08% blood alcohol content is often referred to as the “legal limit,” but it is really the level of blood alcohol content where a person is legally considered to be intoxicated. Therefore, the difference between a breath test result of 0.07% and 0.08%, despite being only one – one hundredth of a percent different can lead one person to being released and the other person to being charged with a DWI with a long legal fight ahead of them. It does not take much of an error in a breath test machine to make such a small numerical mistake. If a breath test machine is not functioning perfectly, if it has not been used perfectly by well-trained personnel, and if the breath test sample is not obtained according to all proper instructions, then the result of the breath test is worthless. These machines are not magic black boxes that always dispense justice, and are incapable of error. The proof of that is playing out in Michigan right now, with 203 breath test machines that were manufactured right here in St. Louis.

St. Louis DWI Lawyer Jason Korner

If you or a loved one have been arrested for a DWI in Missouri, whether there was a breath test or not, it is important to have the specific facts of the case reviewed by a lawyer that specializes in DWI defense. Jason Korner has been defending DWI cases for twelve years, and DWI defense has always been more than half of his case volume. Please call Mr. Korner’s office today at 314-409-2659 or click here to fill out the contact page and Mr. Korner’s office will contact you about the case.

Source: Fox 2 Now, Local Company That Makes Breathalyzers at the Center of Drunk Driving Controversy, January 15, 2020, https://fox2no2.com/2020/01/15/local-company-that-makes-breathalyzers-at-the-center-of-drunk-driving-controversy

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The Michigan State Police have discovered a flaw in the breath testing program used in DWI investigations in the state. The Michigan State Police sent a letter to other police departments and prosecutor’s offices throughout Michigan to inform them there is an issue with the breath test program. Unfortunately, the letter did not specify the flaws with the breath testing program, but it did state the contract with the breath testing company has been suspended due to the flaws.

Types of Breath Test Problems

Many people look at a breath test machine as perfect and beyond fault, but that often is the furthest thing from the truth. There are three main areas where breath testing can be flawed. First, like the current situation in Michigan, the breath testing systems can be flawed as a whole due to fundamental issues with the machines or with the processes needed to obtain a breath sample. Second, breath testing can also deal with flaws within the individual breath testing machines if the machine is not calibrated or maintained properly, or just has an unknown problem. Finally, there can be flaws in the process that law enforcement uses to obtain a breath sample. Simply put, there are many possible defenses to breath tests available, especially when an experienced DWI lawyer is involved.

Any problem with one of the three above potential flaws would cause the breath test reading to be erroneous. Once a breath test result is erroneous, it needs to be thrown out of court altogether because the legal foundations used to obtain the number are faulty and cannot be relied on in a court of law. Breath test machines are like any other piece of technology, and anyone who has used a copy machine at work or dealt with a slightly outdated computer knows, there are plenty of potential problems when dealing with technology.

What If the Breath Test Result is Thrown Out?

If there is a problem with the breath test and the results are not allowed in court, it does not necessary end a DWI prosecution. The prosecutor still may be able to prove the case through other evidence, such as video of a person acting intoxicated or possibly even admitting to drinking “eight to ten beers.” That being said, it is a fundamental blow to the prosecutor’s case anytime the breath test result is disallowed in court.

St. Louis DWI Lawyer Jason Korner

If you or a someone you know has been arrested for a DWI, whether there was a breath test or not, please contact St. Louis DWI lawyer Jason Korner at 314-409-2659, or click here to fill out the contact form and Mr. Korner’s office will contact you.

Source: The Detroit News, Michigan State Police finds flaw in breath alcohol testing, suspends contract,” January 13, 2020, https://www.detroitnews.com/story/news/local/michigan/2020/01/11/michigan-state-police-breath-alcohol-testing-devices-performance-issues/4444435002

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I was fortunate enough recently to be a guest of another attorney on his podcast. Tyson Mutrix, a personal injury attorney in Missouri, asked me to be on his podcast to discuss how a pending Driving While Intoxicated charge can affect an injury case arising out of the same incident. Essentially, if a person gets in an accident and someone is hurt by a drunk driver, how does that change the case and how do the two cases interact. My expertise lies in the criminal aspect of these cases. Tyson Mutrix’s expertise is in the injury portion of the case. My fight is with a criminal prosecutor, while his fight is against an insurance company who he is tryin to get to pay his client for pain and suffering from the injuries sustained in the accident.

Defending Possible Felony DWI Charges

My view on the interaction between the two cases is simple: the criminal case has the higher priority of the two cases. I will not allow my client to give any kind of statement to an investigator or an insurance company while the criminal case is still pending. I will generally speak with my client’s insurance company to explain the situation and inform them that my client is willing to give a statement, but just not until the criminal case has been resolved. I cannot have a client admitting to facts involving the accident, injuries, or intoxication when there is a pending criminal DWI case. A DWI case involving an injury can be charged as a felony DWI in Missouri, which can result in far greater penalties than a DWI without accident or injury.

Listen to the Podcast & Call with Any Questions

The full audio from the podcast is available at the link below. It’s a quick listen at only twelve minutes in length, but it is packed with a lot of valuable information regarding DWI accident resulting in an injury. If you have any further questions regarding these cases please contact my office at 314-409-2659, or click here to fill out the contact form and my office will contact you. If your question relates to the criminal aspects of the case then I will speak with you and answer your questions. If your question is regarding the injury aspect of the case then I will answer anything I can, but will refer you to speak with Tyson Mutrix so he can fully answer your questions.

Click Here to Listen to the Podcast

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For many people there is no scarier situation than to be pulled over by the police after having some drinks. Whether its one or two drinks at a work happy hour, three or four drinks at a Christmas Party, or several drinks after a long night, fear and anxiety are unavoidable when dealing with the police. The first thing you must think about is context. Police already expect people to be drinking substantially more than usual this time of year because of the holidays. Starting with the night before Thanksgiving and going through New Years, the consumption of alcohol increases significantly this time of year. Also, the later into the night you are pulled over, the more likely a police officer will think you have been drinking, and that you have had too much to drink.

Why Were You Pulled Over?

Second, it is important to be aware of the reason you were probably pulled over by the police. If you were pulled over for expired plates or speeding then the police officer may not think you have been drinking. If you were pulled over for leaving your lane or not obeying street signs, then there is a higher likelihood the police officer already believes you are intoxicated. This is very important because people are very accustomed to texting and driving, playing with the radio, and reaching for something that has fallen, which can all cause you to leave your lane. Even if you left your lane for one of these reasons the police will think it is because you are drunk.

“Have You Been Drinking This Evening?”

Once you are pulled over and the police officer arrives at your car to speak with you he is going to get around to asking the million-dollar question, “have you been drinking this evening?” Here is what I can tell you about what a police officer thinks about your possible answer to this question: if you tell him yes then he will believe you, but when you tell him how much you have had he will not believe you. If you say you have been drinking then you will be asked to step out of the car for further investigation, regardless of how little you say you drank. At this point the officer believes you are intoxicated unless you prove to him that you are not. If you say that you have not had anything to drink, now it puts pressure on the police officer to determine if he is going to ask you to step out of the car and begin a DWI investigation. Once you have been pulled over after having anything to drink, the number one way to not get arrested is if you are never asked to step out of your vehicle.

Field Sobriety Tests

The most important thing to know about field sobriety tests is they are more complicated than they appear. You may be able to walk a straight line and stand on one leg, but can you follow each and every instruction from the police officer while doing so? The officer is looking at whether you can balance, but he is also very interested in your ability to follow all of his instructions. The field tests are very technical, and if not performed specifically as instructed then you will be deemed to have failed the tests even if your balance was perfect. It surprises many people to know that you do not have to do the field sobriety tests. They are voluntary tests, regardless of how the police officer makes it sounds. That being said, if you refuse the field tests you should expect to be arrested for DWI. If you are drunk and know you will not do well on the tests, then it is a good idea to refuse the tests and limit the amount of evidence the police officer has against you. There are three main field sobriety tests that are administered during DWI investigations: the Horizontal Gaze Nystagmus (HGN) Test, the Walk and Turn Test, and the One Leg Stand Test. The HGN test checks for involuntary jerking of your eyeballs to determine if you are intoxicated. The Walk and Turn and One Leg Stand test are more traditional balance and follow instruction tests.

Breath Test or Refusal

After the field sobriety tests, if you have not done well the police officer will place you under arrest. Either at that time or back at the station the officer will ask if you will submit to a breath test. He will explain that if you refuse your license will be automatically suspended for one year, which is simply not true. There are no automatics when it comes to the law, there is review for nearly everything. Breath test refusals are no exception. Whether you take a breath test and blow over the legal limit, or if you refuse the breath test you have the right to challenge the resulting driver’s license suspension. In many first offense cases, it is in your best interest to refuse because you may have more options available to you. If you have multiple DWI’s than it may be in your best interest to refuse because there is no evidence of your specific blood alcohol content. Although a police officer can request a search warrant and draw your blood, this does not happen often, and almost never for a first time offender.

St. Louis DWI Lawyer Jason Korner

If you or a loved one gets pulled over for a DWI this holiday season, please contact Jason Korner so he can answer all of your questions and explain the upcoming court process. You can speak with Mr. Korner by calling 314-409-2659 or by clicking here and filling out the contact form.  

The post I’ve Been Pulled Over and Been Drinking … Now What? appeared first on Korner Law.

A Prosecutor’s Role in a DWI Case

The post New Police Tactics for Rural Missouri DWI Cases appeared first on Korner Law.

The post Can a DWI Be Expunged in Missouri? appeared first on Korner Law.

When people find out I am a DWI defense lawyer I get asked a number of questions, but one common question is “What is the difference between a DUI and a DWI?” I even remember getting asked this question back when I was in law school and really had no idea about the answer. There was a time back then when I had the mistaken belief that one was related to alcohol intoxication and the other was related to drug intoxication. That answer was wrong, that is not the difference between a DUI and a DWI. The real answer to the question is simple; it depends on what the legislature in your state named the offense in the criminal statutes for your state. Here in Missouri the legislature used RSMo 577.010 to name the offense Driving While Intoxicated and to define the offense as a person who “operates a motor vehicle while in an intoxicated or drugged condition.”

Some states go away from the general phrasing all together, such as Ohio that has OVI, Operating a Vehicle Under the Influence. Regardless of the name given to a drunk driving charge in any state, the definition of intoxication is a much more important portion of the law. The definition of under the influence of alcohol in Illinois is “a person is under the influence of alcohol when, as a result of drinking any amount of alcohol, his mental or physical faculties are so impaired as to reduce his ability to think and act with ordinary care.” The important part of the Illinois definition is the use of the words “so impaired,” because it overtly states impairment is required. Unfortunately, the Missouri definition only implies impairment, but does not actually state it as a requirement.

Definition of DWI in Missouri

It is important to note that in Missouri intoxication is defined as under the influence of drugs, alcohol, or a combination thereof. Please note, it does not say illegal drugs. This means that if someone takes their prescription Xanax and then has a beer or two that person may very well be legally intoxicated in Missouri. It does not matter that the person has not had enough alcohol to be over the legal limit of 0.08%, or that the Xanax was prescribed by a doctor. If the combination of that Xanax and the beer or two caused the person to be intoxicated then they should not drive. In practice these are very difficult cases for prosecutors to prove. Juries have a difficult time with the combination of legal drugs and alcohol causing someone to be intoxicated. Further, there is no legal limit for drugs, legal or illegal, so drug intoxication becomes a rather ambiguous standard for prosecutors to prove beyond a reasonable doubt.

Another important point is that most blood and urine drug tests will show the presence of a drug, but will not show the drug’s quantity in a person’s system, nor will it show if it is the drug itself, or metabolites from the drug. It is important to know if it is the actual drug or the drug’s metabolites in the person’s system because metabolites are what is left in a person’s body after the active component of the drug have worn off. It is often difficult, if not impossible to tell from metabolites alone when a person may have been under the influence of the drug.

St. Louis DWI Lawyer Jason Korner

If you or a friend have DWI questions, or if you are seeking representation for a DWI related offense, please contact St. Louis DWI lawyer Jason Korner at 314-409-2659 or click here to fill out an information form for a free consultation specific to your question or situation.

The post What is the Difference Between DWI and DUI? appeared first on Korner Law.

Am I Obligated to Perform a Field Sobriety Test?

No, you are never required to perform field sobriety tests for a police officer. This is something many people do not know. I can even confess that this is something even my wife did not know until recently. No, she was not the subject of a DWI investigation, but when I was talking to her about writing this blog she was surprised by the answer. The trick here is that police do not make their request to perform field sobriety sound optional. It sounds like an order, or they just move through it as if it is something you are required to do.

This is not the case. You always have the right to refuse to perform field sobriety tests regardless of the circumstances. It does not matter if a police officer pulls you over after you were swerving all over the road and he saw you taking swigs off a bottle of Jack Daniels while you were driving. There is no set of facts or circumstances where the police can compel you to complete field sobriety tests against your will.

Another important note, do not make your refusal to complete the field sobriety tests sound like an admission that you are drunk. Saying something like “I would not do those tests even if I was sober” is a very bad idea. Try, “I have been advised to never submit to these tests regardless of the situation” instead. Once you have made that statement then there is no need for you to explain yourself further. The officer is going to try to talk you into the tests.

He is probably going to also start to question you more by saying things like “Who told you that?” or “Why wouldn’t you perform them if you aren’t drunk?”

It is the police officer’s job to try to gather as much evidence of intoxication as possible, but it is in your best interest to limit that evidence. Even if the police officer does arrest you for DWI, there is going to be far less evidence to use against you in court if you do not perform the field sobriety tests.

With less evidence of intoxication available, the prosecutor handling the case will be less confident in the case, which allows a good DWI defense attorney to negotiate the case from a position of power. If the case were to go to trial, then there is far less evidence for a prosecutor to present to a judge or jury without the field sobriety tests.

If you have been arrested for a DWI, regardless of whether you submitted to the field sobriety tests or not, it is important to speak with an experienced DWI defense lawyer about the specific facts of your case. If you would like to schedule a free consultation with me regarding your DWI case, then call my office at 314-409-2659.

We can speak about your case over the phone, and then schedule a follow up meeting at my office that is also free of charge. After we speak you will have a far better understanding of Missouri DWI law, and how that law may affect your case moving forward.

Video transcript:

Hi, my name is Jason Korner, I am a DWI defense attorney in St. Louis, Missouri. Today we are going to answer a frequently asked question clients come to me with which is: do I have to submit to field sobriety tests when police ask?

The answer is no, you have no obligation whatsoever to submit to field sobriety tests if the officers ask you to submit to them, just like you have no obligation to answer any of their questions, or give any evidence against yourself whatsoever.

Most people feel an obligation to prove their innocence when an officer asked them to submit to the field sobriety tests because the officer has told them that he has suspicion that they are drunk. If you don’t admit to drinking anything, and you don’t submit to the field sobriety tests, this really limits the amount of evidence a police officer is going to have against you.

This helps greatly if you are eventually charged with driving while intoxicated, and this makes it much more difficult for the officer to make the determination of whether he should arrest you or not. If you have any additional questions, please contact my office.

The post Do I Have to Perform a Field Sobriety Test? appeared first on Korner Law.

As a DWI lawyer in the St. Louis area, I have a lot of conversations with people looking for representation in DWI cases. Many times these people are dealing with a first offense driving while intoxicated charge and a pending drivers license suspension. One of the more interesting things about these conversations is when the people discuss what some other attorneys have told them about their cases. I guess it should not come as too much of a surprise that promises are made and consequences are either inflated or minimized depending on the sales pitch and personality of the lawyers involved. Its very important to point out that I do not believe this is the majority of attorneys, but instead a small subset of attorneys who are doing a disservice to both the potential clients they are speaking with and to other attorneys in the area.

Some DWI Lawyers Are Just in it For The Money

So how does a person searching for quality representation in a DWI case find the right lawyer? One of the most important things is to speak with multiple lawyers so you can see the similarities and differences between various lawyers. Conducting research online and asking the attorneys about their qualifications and experience is another important component to choosing the right attorney. Many areas of law, especially DWI law, has become so specialized and technical that it important to find a lawyer who specializes in that area of law. Ask what percentage of the attorney’s practice is dedicated to DWI defense. Would you really want a divorce or injury lawyer defending your driving while intoxicated case when it is not that lawyer’s primary field of law?

Red Flags to Watch Out For

A red flag to look for are attorneys who tell you immediately that your case should or should not go to trial. How would the attorney know something that important when he has not seen a police report or talked to any witnesses? It is important for lawyers to look at each case individually and not make sweeping statements like, “Well, because you took the breath test you can’t win this case and you need to plea.” After the case is thoroughly looked into the case may not be a good candidate for trial, but there is no way to determine that from one or two quick conversations with the client.

If you have questions you can find more information on How to Hire a Missouri DWI Lawyer here. If you are looking for an honest assessment of your case, then contact my office at (314) 409-2659 or click here to fill out an information form and my office will contact you to discuss your case.

The post Looking for a DWI Lawyer? Read This First appeared first on Korner Law.

On behalf of The Law Office of Jason A. Korner posted in Breath Test Refusal on Thursday, September 18, 2014. Please keep reading this post to learn important information about what you should after your DWI traffic stop.

The post What You Must Know After Your DWI Traffic Stop appeared first on Korner Law.