Missouri courts allow drivers who lose the initial "telephone" hearing to contest the suspension in the circuit court where the arrest occurred. This is a called a De Novo review under Missouri statute 302.535. The burden of proof falls on the state to prove the driver was driving with a blood-alcohol level above 0.08%. At the hearing, the driver may cross-examine the arresting officer IF he is present. The court generally accepts as evidence the officer's arrest report and documents relating to the maintenance of the Intoxilyzer. As the Petitiioner-driver, you may testify on your own behalf or remain silent and allow your attorney to make the arguments on your behalf. These hearings, much like the Kansas procedure, are stacked against the driver. Why? in spite of the burden of proof on the state, the driver must overcome the presumption of reliability and credibility of the reports submitted as evidence by the state. The driver must rebut this presumption with evidence of his or her own. In this instance, the driver can retain their own expert to testify regarding the Intox instrument (Intoxilyzer 8000 is the current machine used by most departments) or to testify regarding the "blood alchohol curve" as it relates to absorption in the body following consumption. Or, the driver may testify, as in my recent case in Missouri, that he didn't commit a traffic violation that warranted the initial stop by law enforcement. At the conclusion, the Court will enter a "Findings of Fact and Conclusions of Law and Judgment" that serves as the final opinion in the matter. Few cases are appealed to the court of appeals. In most cases, the driver has already served their suspension time and thus a costly appeal is not wise. However, there a few cases worthy of appeal but in those cases the driver should have credible evidence that supports their position.
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