In a plurality opinion of three judges, the
Supreme Court of Missouri declined to issue a writ of mandamus.[1] In this case the circuit court refused to
dismiss a driving while intoxicated charge when the defendant’s blood alcohol concentration
(“BAC”) was below .08% and no evidence was presented that the defendant was
intoxicated.[2] Judge Patricia Breckenridge issued a concurring
opinion and Chief Justice Zel M. Fisher issued a dissenting opinion, which was
joined by Judges George W. Draper III and Laura Denvir Stith.[3]
I.
Background
This case began when Willis McCree (“McCree”)
was arrested on April 14, 2016, for driving while intoxicated.[4] McCree’s car apparently broke down while he
was driving, and an officer arrived on the scene.[5] The officer had a conversation with McCree
and observed that McCree had a “heavy odor of intoxicants,” watery eyes, and
difficulty standing.[6] McCree also admitted to consuming three to
four beers.[7] McCree refused to take a field sobriety test,
so the police obtained a search warrant to obtain blood samples.[8] The police obtained two blood samples where
McCree had a BAC of .052% and .039%.[9]
The State charged McCree with a class B
felony of driving while intoxicated under the 2014 version of Missouri Revised
Statutes section 577.010.[10] McCree filed a motion to dismiss the driving
while intoxicated charge pursuant to section 577.037.2.[11] Although the procedural posture was a subject
of dispute in this case,[12] the circuit court
overruled McCree’s motion to dismiss.[13] Subsequently, McCree filed a petition for a
writ of mandamus ordering the circuit court to dismiss the driving while
intoxicated charge.[14] The court of appeals denied the petition and
the Supreme Court of Missouri granted a preliminary writ of mandamus and issued
its opinion.[15]
II.
Legal Background
This case was before the court because the
defendant filed a writ of mandamus.[16] A writ of mandamus is an extraordinary remedy
that is available to compel a lower court to follow the correct procedure.[17] “[R]elief by mandamus must allege and prove
that he has a clear, unequivocal, specific right to a thing claimed.”[18] Mandamus relief is usually not available when
the error can be corrected on appeal.[19]
This case primarily concerned the
construction of Missouri Revised Statutes section 577.037.2.[20] Under section 577.037.2 if the State shows that the defendant’s BAC is
at or above .08%, then the State has presented prima facie evidence that the
defendant was driving while intoxicated.[21] If the defendant’s BAC is lower than .08%,
then the case is subject to dismissal with prejudice unless the State shows (1)
evidence that the chemical analysis is unreliable as evidence due to a lapse of
time in obtaining the evidence; (2) evidence that the defendant was under the
influence of a controlled substance other than or in combination with alcohol;
or (3) substantial evidence of intoxication from physical observations of
witnesses or admissions of the defendant.[22]
In the instant case the court examined
whether State v. Mignone dictated the
result in this case.[23] In Mignone,
the Western District of Missouri considered whether a man charged with driving
while intoxicated was entitled to a motion to dismiss under section 577.037.2
when the State presented evidence that the officer suspected that the defendant
was intoxicated and the defendant’s BAC was .075%.[24] In Mignone,
the circuit court dismissed the charge at the conclusion of a pretrial hearing,
and the State appealed, arguing that it had presented substantial evidence of
intoxication.[25] The Mignone,
court held that the State has a burden of persuasion to show that the action
should not be dismissed when the defendant’s BAC is below .08%.[26]
Missouri Supreme Court Rule 24.04(b)
applies in this case because the subject of appeal was a pretrial motion to
dismiss a criminal charge.[27] This rule provides in pertinent part that “[t]he
[pretrial] motion shall be heard and determined before trial on application of
the state or the defendant, unless the court orders that the hearing and
determination thereof be deferred until the trial.”[28] This rule permits the court to dismiss a
criminal charge because it was brought with insufficient evidence.[29] This “motion is to be heard and determined
before trial, unless ordered deferred by the court.”[30]
III.
Instant Decision
A.
Plurality
Judge Mary R. Russell wrote the plurality
opinion, which was joined by Judges Brent Powell and Paul C. Wilson.[31] The plurality began its analysis by providing
an overview of the legal requirements of writs of mandamus.[32] The plurality cited authority that stated
that a litigant must prove that he has a clear, unequivocal, specific right to
the subject of appeal.[33] The plurality also noted that writs of
mandamus are inappropriate when a remedy is available through appeal or when a
circuit court is exercising its discretion.[34]
Next, the plurality turned its attention
to the merits of the case by interpreting section 577.037.2.[35] The plurality analyzed the language of the
statute and stated that “words cannot be added [to a statute] by implication.”[36] The plurality noted that the statute does not
state when the circuit court must rule on a motion to dismiss.[37] Since the statute did not address when the
motion must be decided, the plurality stated that Missouri Supreme Court Rule
24.04(b) governed this procedure.[38] Because Rule 24.04(b) gives a circuit court
the discretion to defer a ruling on a motion to dismiss,[39] the plurality deemed the
circuit court’s order overruling the defendant’s motion to dismiss as a
deferral of a ruling on the motion.[40] The plurality then noted that the overruled motion
could be reconsidered at a later date.[41] Next, the plurality distinguished the instant
case from State v. Mignone by stating
that Mignone did not expressly hold
that a pretrial determination is necessary when resolving a motion to dismiss
under section 577.037.2.[42] The plurality concluded its opinion by
stating that the circuit court acted within its discretion by deferring the
determination of the matter.[43]
B. Concurrence
Judge Patricia Breckenridge wrote a one
paragraph concurring opinion where she argued that the correct result was
reached because this case presented an issue that is subject to review on
direct appeal.[44] The assertion that a writ of mandamus is an
inappropriate remedy is implicit in the concurring opinion.[45]
C. Dissent
Chief Justice Zel M. Fischer wrote the
dissenting opinion joined by Judges George W. Draper, W. and Laura Denvir Stith.[46] The dissent began by stating that if the lower
court had deferred ruling on the motion to dismiss until trial, it would have
joined the plurality.[47] The dissent stated that the lower court was
required to weigh and consider the sufficiency of the State’s evidence.[48] The dissent argued that the charge should
have been dismissed because the State did not offer any evidence at the hearing.[49]
In its analysis, the dissent attacked the
plurality’s two justifications for its opinion.[50] The dissent argued that a fair reading of the
statute, given due deference to legislative intent, should be read as creating
a procedure similar to summary judgment.[51] The dissent argued that this procedure served
to conserve judicial resources when the State brings cases without substantial
evidence.[52] In particular, the dissent focused on a rule
of statutory construction where courts presume that the legislature intended to
import a specific meaning when the statute uses legal terms of art in its
language.[53] The dissent argued that the statute should be
read as creating a pretrial procedure.[54] The dissent concluded by arguing that the
circuit court ruled on the motion to dismiss and did not defer a ruling on the
matter like the plurality suggested.[55] The dissent would have issued a permanent writ
of mandamus requiring the circuit court to dismiss the driving while
intoxicated charge against McCree. [56]
IV.
Comment
Interestingly, the Dalton case only stands for the proposition that a writ of mandamus
is the proper procedure for a criminal defendant who is aggrieved by a court’s
failure to dismiss a criminal charge.
Despite its 6-1 majority on the mandamus issue, the court was unable to agree
on the correct construction of section 577.037.2. This case is interesting because it provides
helpful guidance about how the members of the court might rule in the future.
The plurality argued that the circuit
court was not required to rule on the motion to dismiss under section 577.037.2
because the statute did not proscribe a time for the determination of the
motion. The dissent argued that the term
dismissal has meaning imported from civil procedure. While both of these arguments are persuasive,
I believe the court should take a third approach.
Instead of interpreting the language of
section 577.037.2, the court should look to the language of Rule 24.04. Under this rule, the court “shall be heard
and determined . . . unless the court
orders that the hearing and determination thereof be deferred until the
trial.”[57] The circuit court never entered an order
deferring the determination of the motion.[58] Instead the court ruled on the motion when
the court overruled it.[59] The circuit court did this even though the
State did not present any evidence.[60] Because a complete lack of evidence is
insufficient to support a criminal charge and the circuit court did not follow
the procedure outlined in Rule 24.04(b), the Supreme Court of Missouri should
have made the writ of mandamus permanent and ordered the circuit court to
dismiss the charge.
-
David
O’Connell
[1] State ex rel. McCree v. Dalton, No. SC 97186, 2019 WL 1247080, *1 (Mo.
Mar. 19, 2019) (en banc).
[2] Id.
[3] Id. at *4.
[4] Id. at *1.
[5] Id. at *1.
[6] Id.
[7] Id.
[8] Id
[9] Id.
[10] Id.
[11] Id. at *1.
[12] Id. at *1, *5.
[13] Id. at *1.
[14] Id.
[15] Id.
[16] Id.
[17] State ex rel. Mertens v. Brown, 198 S.W.3d 616, 618 (Mo. 2006) (en banc).
[18] Furlong Cos., Inc. v. City of Kan.
City, 189 S.W.3d 157, 166 (Mo. 2006) (en banc).
[19] Mo.
Sup. Ct. R. 84.22(a).
[20] State ex rel. McCree, 2019 WL 1247080, at *1.
[21] Mo.
Rev. Stat. § 577.037.2
(2016).
[22] Id.
[23] 411 S.W.3d 361, 362 (Mo. Ct. App.
2013).
[24] Id. at 362–63.
[25] Id. at 362.
[26] Id at 364.
[27] See Mo. Sup. Ct. R.
24.04(b).
[28] Id.
[29] State v. Metzinger, 456 S.W.3d 84,
98 (Mo. Ct. App. 2015).
[30] State v. Quimby, 716 S.W.2d 327,
331 (Mo. Ct. App. 1986).
[31] State ex rel. McCree v. Dalton, No. SC 97186, 2019 WL 1247080, *1 (Mo.
Mar. 19, 2019) (en banc).
[32] Id. at *2.
[33] Id.
[34] Id. at *3–4.
[35] Id. at *2.
[36] Id.
[37] Id.
[38] Id. at *3.
[39] Mo.
Sup. Ct. R. 24.04(b)(4).
[40] State ex rel. McCree, 2019 WL 1247080, at *3.
[41] Id.
[42] Id.
[43] Id. at *3–4.
[44] Id. at *4 (Breckenridge, J., concurring).
[45] Id.
[46] Id. (Fischer, C.J., dissenting).
[47] Id.
[48] Id.
[49] Id.
[50] Id. at *5.
[51] Id. at *6.
[52] Id.
[53] Id.
[54] Id. at *6–7.
[55] Id. at *7.
[56] Id. at *8.
[57] Mo.
Sup. Ct. R. 24.04 (emphasis added).
[58] State ex rel. McCree, 2019 WL 1247080, at *3.
[59] Id.
[60] Id.
