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Botched evidence suppression might scrap DUI sentence

Due to police illegally seizing a man after his car crash, partially suppressed evidence of his drunken state afterward has been tossed up for the Missouri Supreme Court’s consideration.

In 2018, Kyle Petersen crashed his car. A highway patrol trooper arrived to find Petersen already in handcuffs.

The trooper noted his alcohol-fueled breath and bloodshot eyes and gave him a nystagmus test, which Petersen failed. The trooper arrested him over suspicion of driving while intoxicated and only then was Petersen informed of implied consent laws. Petersen consented to a breathalyzer test, which pinned his blood alcohol content at .171 percent.

Before trial, Petersen moved to suppress evidence based on his illegal seizure that lacked Miranda warnings. A circuit court partially approved this while refusing to suppress evidence of the trooper’s testimony and test results. A judge sentenced him to four years in prison but suspended his sentence in lieu of probation, finding Petersen guilty of a DUI.

During September 20 oral arguments, Petersen’s attorney Thomas Carver admitted from the start of oral arguments that there wasn’t a lot of law to support his position in this area, and noted the rare occasion of being able to argue this issue.

“I think there are situations, especially in judge-tried cases, where it is apparent and obvious what the objection is,” Carver said, “and if it’s a constitutional issue, a Fourth Amendment violation, then literally everyone in the courtroom is aware of what the complaint is.”

Carver said that the current rule allows courts to avoid speaking on the merits.

Judge Zel Fisher noted that Carver seemed to be arguing to dissolve the difference between the handling of suppression of evidence in trial structure.

“I understand your argument, but I’m worried about the big picture,” he said. “How many other rules will we have that are different for bench trials versus jury trials?”

Carver said that in the heat of trial, repeated motions in limine and motions to suppress evidence start to cool after multiple denied requests even if a lawyer doesn’t agree with a dismissal.

“But that’s the point of the rule, though,” Judge W. Brent Powell said. “I think the reason here is whether there is a bench trial or a jury trial, the concern is the trial court, the judge, could change their mind.”

Judge George Draper noted the difference between the two different motions.

“Counsel, I don’t know that I agree with you, but there is a big distinction between a ruling and a motion in limine and a motion to suppress,” Draper said.

Garrick Aplin from the Missouri Attorney General’s Office said the burden should remain with counsel to assert their objection to included evidence.

“I don’t think that’s too big a burden to place on counsel, and I think that’s the appropriate division of responsibility because it’s counsel’s duty to place an objection before the trial court saying, ‘We — this is what we object to,’” Aplin said.

Judge Mary R. Russell’s idea of the trial judge asking to clarify an objection, regardless of if they are required to do so, was one of several hypothetical answers to who bears the burden.

“Suppose we do address the merits here,” Chief Justice Paul C. Wilson said. “Either we find it preserved, or that they exercised discretion for plain error.”

Aplin said that exclusion has historically been a last resort.

Judge Patricia Breckenridge asked Carver on rebuttal if even without the officers’ testimony there was probable cause for his client’s DUI due to the single-vehicle crash. Carver said, “Yes.”

The case is Petersen v. State of Missouri, SC99522 .