The First 30 Seconds The Prosecutor’s Perspective

The First 30 Seconds The Prosecutor’s Perspective John C. Bauer Asst. Prosecuting Attorney St. Charles Co., Missouri

Objectives • To understand the Statutes as they apply to impaired driving cases. • To understand the prosecutor's role in the initial investigation. • To be aware of essential evidence to establish elements of the offenses. • To utilize the legal tools available for obtaining that evidence

INVOLUNTARY MANSLAUGHTER-RSMo. SECTION 565.024 • Involuntary manslaughter can be either a Class B or a Class C Felony in Missouri. • A driver commits the crime of involuntary manslaughter, if he or she, while in an intoxicated condition, operates a motor vehicle in the State of Missouri, and, when so operating, acts with criminal negligence to cause the death of any person.

Class B Felony – Involuntary Manslaughter • If the defendant kills two people; • If the defendant kills someone who is not an occupant of his vehicle • If the defendant’s blood alcohol content is more than .18%.

MURDER SECOND DEGREE-RSMo. SECTION 565.021 • Murder second degree in Missouri is a Class A Felony in Missouri. A person commits the crime of Murder in the Second Degree in Missouri if he or she commits or attempts to commit any felony, and, in the perpetration or the attempted perpetration of such felony or in the flight from the perpetration or attempted perpetration of such felony, another person is killed as a result of the perpetration or attempted perpetration of such felony or immediate flight from the perpetration of such felony or attempted perpetration of such felony.

Felonies Involved in Murder 2nd • Felony Driving While Intoxicated • Felony Driving While Revoked • Felony Leaving the Scene of An Accident • Felony Resisting Arrest

ASSAULT SECOND DEGREE -RSMo. SECTION 565.060(4) • Assault in the Second Degree in Missouri is a Class C Felony. A driver commits the crime of Assault in the Second Degree in Missouri if he or she, while in an intoxicated condition or under the influence of controlled substances or drugs, operates a motor vehicle while in the State of Missouri, and, when so operating, acts with criminal negligence to cause physical injury to any other person than himself.

Prosecutor’s Role • Not to direct investigation • Remind investigating agencies and personnel of the elements of the crime • Assist by utilizing tools in his arsenal • To aid in discovering the truth

Proving the Crime – the Essential Elements • Operation • Impairment • Criminal Negligence

Operation • The term "drive", "driving", "operates" or "operating" means physically driving or operating a motor vehicle. – RSMo 577.001 • Case law in Missouri has shown that even in cases where the vehicle is stopped or tunred off, “operation” of the vehicle can be established • Case law also establishes that “operation” can be proved without seeing the defendant behind the wheel.

Evidence of Operation • Admissions or statements to police and others, • The location of the defendant at the scene and his proximity to the vehicle, • The presence of other possible drivers, • Who has possession of the keys, • Vehicle ownership, and • What personal property was located in the vehicle.

Evidence of Operation • pattern injuries caused by items in the vehicle, • the direction of safety belt injuries, • other injuries consistent only with being the driver, • the location of fingerprints consistent with driving, • any blood and hair trace evidence consistent with driving, • seat positions, • brake pedal impressions, and • air bag and fabric forensics.

Tools of the Trade • Evidence pictures – UNDISTURBED scene…. • Statements of witnesses – WRITTEN • Search Warrants – Seizing parts of the vehicle • Statements of defendant to witnesses

Impaired Condition • being under the influence of alcohol, a controlled substance, or drug, or any combination thereof. – RSMo 577.011 • Drugged condition – must be able to show that impairment observed is consistent with impairment that would occur by that drug or drugs – USE D.R.E.’s • Must prove impairment at the time of operation.

Tools of the Trade • Evidence at the scene • Cans, cups and bottles • Receipts • Statements from passengers - WRITTEN • Statements from emergency personnel – WRITTEN

More Tools for Establishing Impairment • Driving Investigation • Field Sobriety Testing • Drug Recognition Exams • Search Warrants for Blood or Urine • Recent Law Changes • Evidence of Refusal of FST’s and Testing • Good, Old Fashioned Observations

Criminal Negligence • Criminal Negligence - The term "criminal negligence" means failure to be aware of a substantial and unjustifiable risk that circumstances exist or a result will follow, and such failure constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation.RSMo. Section 556.061(6) & 562.016.

To prove the crimes of either Involuntary Manslaughter or Assault 2nd Degree Impairment + Negligence = Guilty Criminal negligence cannot be proven by impairment alone. You must have evidence that the impaired driver was at fault to a certain level for the injury or fatality.

Tools of the Trade • Search Warrants • CDR Units • Reconstruction • Witness Statements – WRITTEN • Statements from the defendant to emergency personnel

The First 30 Seconds The Prosecutor’s Perspective