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State ex rel. McCree v. Dalton

Supreme Court of Missouri, En Banc

March 19, 2019

STATE OF MISSOURI ex rel. WILLIS MCCREE, Relator,
v.
THE HONORABLE WESLEY DALTON, Respondent.

          ORIGINAL PROCEEDING IN MANDAMUS

          MARY R. RUSSELL, JUDGE

         Willis McCree seeks a writ of mandamus to compel the circuit court to dismiss with prejudice McCree's charge of driving while intoxicated. McCree filed a motion under section 577.037.2, [1] arguing that because the chemical analysis demonstrated his blood alcohol concentration was under .08 percent, and the State did not present evidence to prove the dismissal was unwarranted, the charge should be dismissed. The circuit court overruled McCree's motion, and the matter remains set for trial.

         McCree has not demonstrated a clear and unequivocal right to the dismissal of his charge because the plain language of section 577.037.2 does not require a pretrial hearing or pretrial determination on the motion. Further, under this Court's rules, the circuit court has discretion to order that a hearing and determination on the motion be deferred until trial. The circuit court's overruling of the motion effectively deferred the matter until trial, and McCree can seek relief on appeal. This Court quashes its preliminary writ of mandamus.

         Background

         McCree parked his vehicle on the side of the road in Warren County after it broke down. A sheriff's deputy arrived on the scene and asked McCree to exit the vehicle. As he did so, the deputy smelled a heavy odor of intoxicants and observed that McCree had watery eyes and difficulty standing. McCree admitted to the deputy he had consumed three to four beers, and he staggered as he spoke.

         The deputy arrested McCree for driving while revoked and transported him to the county jail, where he was arrested for driving while intoxicated. He refused to complete field sobriety tests or a chemical test of his breath. The deputy obtained a search warrant to determine McCree's blood alcohol concentration. McCree provided two blood samples revealing alcohol concentration levels of .052 percent and .039 percent.

         The State charged McCree by information with one count of the class B felony of driving while intoxicated under section 577.010, RSMo Supp. 2014, and one count of driving while revoked under section 302.321, RSMo Supp. 2014. The matter was set for jury trial. McCree filed a motion under section 577.037.2, arguing that because the chemical analysis demonstrated his blood alcohol concentration was less than .08 percent, the charge should be dismissed because the State failed to present evidence to prove dismissal unwarranted. The circuit court held a hearing on the motion. Neither the State nor McCree called any witnesses or presented any evidence. The circuit court overruled the motion, and the matter remains set for trial on March 21, 2019.

         McCree filed a petition for a writ of mandamus in the court of appeals, seeking to compel the circuit court to dismiss with prejudice the charge of driving while intoxicated. The court of appeals denied the petition. This Court issued a preliminary writ. McCree now seeks a permanent writ of mandamus from this Court.

         Jurisdiction and Standard of Review

         This Court has the authority to issue and determine original remedial writs. Mo. Const. art. V, sec. 4. A litigant seeking a writ of mandamus "must allege and prove that he has a clear, unequivocal, specific right to a thing claimed." State ex rel. Hewitt v. Kerr, 461 S.W.3d 798, 805 (Mo. banc 2015) (quoting Furlong Cos., Inc. v. City of Kansas City, 189 S.W.3d 157, 166 (Mo. banc 2006)). "This right may arise from a statute that creates a right but does not explicitly provide mandamus as a remedy to enforce the right." Id. Ordinarily, mandamus should not be used to control or direct the circuit court's exercise of discretionary powers. State ex rel. Mertens v. Brown, 198 S.W.3d 616, 618 (Mo. banc 2006). Mandamus is inappropriate when there is remedy through appeal. Rule 84.22(a); State ex rel. Kauble v. Hartenbach, 216 S.W.3d 158, 159 (Mo. banc 2007).

         Analysis

         This case presents the question whether McCree has a clear and unequivocal right to the pretrial dismissal of his charge of driving while intoxicated when a pretrial hearing on his section 577.037.2 motion was held and neither he nor the State presented any evidence at the hearing. McCree argues that under these facts, he has a clear and unequivocal right to have the charge of driving while intoxicated dismissed.

         Section 577.037.2 states, in pertinent part:

2. If a chemical analysis of the defendant's breath, blood, saliva, or urine demonstrates there was eight-hundredths of one percent or more by weight of alcohol in the person's blood, this shall be prima facie evidence that the person was intoxicated at the time the specimen was taken. If a chemical analysis of the defendant's breath, blood, saliva, or urine demonstrates that there was less than eight-hundredths of one percent of alcohol in the defendant's blood, any charge alleging a criminal offense related to the operation of a vehicle, vessel, or aircraft while in an intoxicated condition shall be dismissed with prejudice unless one or more of the following considerations cause the court to find a dismissal unwarranted:
(1) There is evidence that the chemical analysis is unreliable as evidence of the defendant's intoxication at the time of the alleged violation due to the lapse of time between the alleged violation and the obtaining of the specimen;
(2) There is evidence that the defendant was under the influence of a controlled substance, or drug, or a combination of either or both with or without alcohol; or
(3) There is substantial evidence of intoxication from physical observations of witnesses or admissions of the defendant.

(Emphasis added.).

         Although the language in section 577.037.2 indicates what evidence the State must present to avoid dismissal of the case when a motion is made, it makes no mention of when the State must present the evidence or at what point the circuit court must rule on the motion. When interpreting a statute, its clear and unambiguous language must be given effect, and words cannot be added by implication. State ex rel. Young v. Wood, 254 S.W.3d 871, 873 (Mo. banc 2008). Section 577.037 does not provide for a pretrial hearing or pretrial determination by the circuit court. Had the legislature intended section 577.037 to require a pretrial hearing or pretrial determination, it could have included this requirement.[2] The plain language of section 577.037 does not confer a statutory right to a pretrial hearing or pretrial determination by the circuit court.[3]

         Section 577.037 is consistent with this Court's rules in that neither confers a right to a pretrial hearing or pretrial determination. Under Rule 24.04(b), a motion raising defenses or objections "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." In other words, Rule 24.04(b)(4) provides the circuit court with the discretion to defer a hearing and ruling on the motion until trial. Read together, section 577.037.2 and Rule 24.04(b) do not require that a pretrial hearing occur or that a pretrial determination by the circuit court be made. The circuit court's denial of the motion here effectively deferred such a ruling until trial.[4]

         McCree concedes that the circuit court could have expressly reserved ruling on the motion until trial, as a motion under section 577.037.2 could be heard and determined at trial without undermining the statute's purpose. But, according to McCree, "[t]he abuse of discretion occurred when [the circuit court] held a hearing on McCree's ...


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