 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Cain v. Director of Revenue3/26/2004
witnesses. Cain did not testify on his own behalf. Two witnesses, Cain's father, Dean, and Sheila McCarty, who arrived on the scene after the collision occurred, testified that they overheard Trooper ask Cain to submit to a blood test. Dean testified that he heard his son say he was in pain and that he "didn't want to do the test." Dean also testified that Trooper was asking that the blood test be conducted as Cain "was about to be put in the helicopter." According to Dean, the helicopter created a lot of noise, which made it difficult to hear what everyone was saying.
Both Dean and McCarty testified that they overheard some sort of discussion or argument between Trooper and a paramedic, Michael Moore, regarding the blood test. Dean testified that Trooper essentially "ordered away" and "was adamant about wanting to draw blood" from Cain. Moore, however, according to Dean, was adamant about not drawing blood, even telling Trooper, "Well, I'm going to do it my way until I'm proven different." According to McCarty, Trooper and Moore each expressed that they were "just trying to do [their] job." McCarty also heard Dean ask Trooper if they "could please wait and see if [Cain] was going to . . . live, and worry about the . . . testing and stuff later."
Moore testified that he and Trooper had a "strong discussion" after Trooper requested that Moore draw Cain's blood and Moore informed Trooper that he "could not draw blood for legal reason . . . in the ditch, but . . . could do so in the back of the ambulance." Cain was not transported by ambulance, but instead by helicopter to St. John's Hospital in Springfield, Missouri for further medical attention. When asked about what others had overheard at the scene, Moore testified that " fter the event, I asked [Trooper] not to interfere with my job and patient care." Moore testified that Trooper told Moore "he could and would arrest me" for refusing to draw blood.
Dean, McCarty, and Cain's son, Tyler, all testified that they witnessed Trooper shine, or attempt to shine, a pen light into Cain's eyes. Trooper testified that he does not carry a pen light, did not use one that day, and always uses his finger to administer the gaze nystagmus test.
Tyler, who was fourteen years old at the time and was operating an ATV behind Cain when the collision occurred, testified that there was no cooler on the back of his father's ATV. Tyler further testified that Cain's ATV was not equipped to carry such an item. Both Tyler and Dean testified that Cain had not been drinking prior to the collision. Dean had seen Cain forty-five minutes before the collision occurred.
At the end of closing arguments, the trial court indicated that the evidence appeared to show that a collision occurred, that Cain had glassy eyes, and that Cain refused to cooperate in the gaze nystagmus test. The trial judge further stated that he did not think that glassy eyes and the fact that a collision occurred were enough for probable cause, but wanted to allow Director the opportunity to find a case where that was enough, or where refusing to participate in field sobriety tests provides probable cause. The judge noted, "If you have a case that indicates that a refusal to take one of these initial tests also is an objective manifestation the court can consider in regards to whether there was probable cause to arrest him for driving while intoxicated, I'd be happy to give you a chance to produce that." The trial court continued the case to allow both sides to submit further written argument on the issues.
A docket entry from November 6, 2002, that is denominated a judgment and signed by the trial judge, includes the finding that "there was no probabl
Page 1 2 3 4 5 Missouri DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|