Court gavel

The Missouri Supreme Court is weighing whether a Warren County judge made a mistake by choosing not to dismiss a 2016 drunk driving charge.

The Supreme Court heard arguments Wednesday, Nov. 7, in Willis McCree v. The Honorable Wesley Dalton. McCree, 55, of Lake Sherwood, was arrested in April 2016 for driving while intoxicated and driving with a revoked license. Dalton is the presiding judge of Warren County Circuit Court.

In documents filed with the Supreme Court, an attorney for McCree argues that Dalton had a legal obligation to dismiss the DWI charge due to a lack of evidence. Central to the argument is the fact that blood tests didn’t show McCree to be over the legal limit of 0.08 percent blood alcohol content when he was arrested.

Two samples of McCree’s blood were taken after he was arrested, court documents state. Analysis showed a blood alcohol content of 0.052 percent in one sample and 0.039 percent in the other sample, both of which are lower than the legal limit.

More than a year after the charges were filed, as legal proceedings continued in the case, an attorney for McCree asked Judge Dalton to dismiss the DWI charge. The request was based on a state law that says DWI cases without a 0.08 blood test must be dismissed unless prosecutors provide further evidence.

In September 2017, Dalton declined to dismiss the DWI charge without having heard any additional evidence, defense attorney Dominic Cicerelli wrote in a petition to the Supreme Court.

“(Dalton) abused (his) discretion when (he) denied McCree’s motion to dismiss without hearing any evidence,” Cicerelli said. He added that prosecutors have the burden of proof to show why the charge shouldn’t be dismissed in this case, and that burden was not met.

But Prosecuting Attorney Kelly King, representing Dalton, argued in a written reply to the court that the judge has no obligation to hear evidence or make a decision to dismiss the case prior to a jury trial.

Forcing the prosecution to present its evidence prior to a jury trial would essentially grant McCree two trials, one before a judge and a second before a jury, King wrote to the court.

“No criminal defendant is afforded a right to both a (trial before a judge) and jury trial on the same matter,” King wrote, calling such a result “absurd and unfair.”

She argued that Dalton is within his discretion not to dismiss the DWI charge before evidence has been presented at trial.

Although McCree has had several trial dates scheduled in 2017 and 2018, each has been delayed. He had a hearing Nov. 6 in Warren County Circuit Court to review the status of his case.

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