The outcome in a Missouri drunk driving case may come down to the distinction between two little words: “and” and “or.” Defense attorneys in the state are seeking to prevent license suspension and other penalties for their clients by arguing that blood alcohol testing equipment must be calibrated using three different values. That camp — advocates for the “and” interpretation of the statute — argues that any evidence collected by a breathalyzer that was not calibrated to all three values should be inadmissible. Health officials say that was never the intent of the law.

In response, the Missouri Department of Health and Senior Services has changed the wording of the breath-testing law, replacing “and” with “or.” Now, officers calibrate the equipment using any of the following values: 0.10 percent, 0.08 percent or 0.04 percent blood alcohol content. Officials say that testing at all three of those values has never been required, so they changed the rule for clarity’s sake.

Still, criminal defense attorneys are experiencing some victories because of the wording of the law. In St. Charles County, two drivers were able to have their license suspension revoked after their breath tests were deemed inadmissible. This has raised the ire of some state officials, but it has also raised hope for drivers who may have been tested with equipment that had not been properly inspected. Prosecutors caution defendants that breath tests are useful in drunk driving cases, but they are not required to achieve a conviction.

Missouri drivers who believe they may have been unfairly tested may benefit from a consultation with a Missouri attorney about their DWI charges. Defendants should not be subject to license suspension or license revocation if they were subject to unreliable breath tests. A Missouri attorney may be able to provide these drivers with additional information about their legal rights.

Source: St. Louis Post-Dispatch, “Missouri disagrees with defense attorneys over possible DWI loophole” Jesse Bogan, Feb. 28, 2014