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Possible DWI loophole could lead to numerous criminal appeals

When folks in Missouri are convicted of a crime, that does not necessarily bring their case to a conclusion. Many people choose to appeal their conviction in the hope that evidence that was misinterpreted or not properly considered could exonerate them. A possible loophole in Missouri law could have a lot of people scrambling to appeal their conviction on drunk driving charges.

For a 14-month period that ended about a month ago when it was changed, the regulations around the maintenance of breath-test equipment for people suspected of drunk driving were in question. The way the regulations were worded, it could be interpreted that the equipment had to be tested at three different levels: 0.04 percent, 0.08 percent and 0.10 percent.

The loophole lies in the use of the word "and." People appealing their cases say that while the regulations were worded that way, officials were required to test all three levels, rather than just one. That meant, in theory, that if the equipment hadn't been tested at all three levels, that evidence obtained in that manner could have been inadmissible. A judge agreed in two cases recently, and reinstated the drivers' licenses of two people.

The department in charge of regulating the devices has since changed "and" to "or." State officials resist the idea that the presence of "and" could affect cases, but judges may not agree with them.

Regardless of the nature of your case, an appeal might be possible, or even encouraged. An experienced criminal appeals attorney could be a good sounding board for a defendant.

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

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