The Missouri State Supreme Court has overturned the 10-year prison sentence of a man who was convicted of driving while intoxicated (DWI) in Warren County.

Timothy A. Shepherd, 53, was sentenced in 2019 as a “habitual offender,” meaning he has at least five prior DWI convictions (prosecutors told the court he actually has seven such convictions). Missouri law has a system of escalating penalties for each prior DWI offense, reaching more than 10 years for the worst repeat offenders.

In a ruling issued last week, the Supreme Court found that Shepherd’s 10-year sentence was too long, because Warren County prosecutors failed to present sufficient evidence to prove that he is a habitual offender.

The key fact of the ruling: All seven of Shepherd’s prior convictions happened in Colorado, not Missouri.

The DWI conviction

In March 2017, Shepherd was the driver of a Ford truck that crashed on Highway 47 in Warren County, according to court documents. Shepherd allegedly admitted to drinking six beers before the crash, and a highway patrol trooper arrested him for driving while intoxicated. A blood test later showed his blood alcohol content was 0.28 percent, over three times the legal limit.

After two years of hearings, Shepherd’s case went to trial in October 2019, and he was convicted and sentenced to 10 years by Senior Judge Keith Sutherland.

Shepherd appealed that sentencing, eventually leading to a hearing before the Supreme Court in December 2021.

The appeal

Shepherd’s appeal relies on an important difference between Missouri and Colorado law. To get a DWI in Missouri, a person needs to be driving a moving vehicle. However, at the time of Shepherd’s Colorado convictions, a person could be convicted simply for being “in physical control” of a vehicle, meaning that just sitting behind the wheel of an unmoving car could count.

To qualify as prior offenses under Missouri law, Shepherd’s convictions from Colorado must be for conduct that would also be illegal in Missouri. During trial, prosecutors provided almost no information to prove Shepherd’s prior offenses qualified, Shepherd’s attorneys argued.

In an April 26 ruling, the Supreme Court said they mostly agreed with the defendant.

Prosecutors’ sole evidence regarding prior convictions was a summary of Shepherd’s Colorado driving record. It listed seven prior convictions, but gave few substantial details beyond that.
Three out of the seven convictions on the list noted that vehicle accidents were involved, according to court documents. That’s enough for the trial court to infer Shepherd was actually driving the vehicle at the time, the Supreme Court justices wrote in their ruling.

However, for the other four prior convictions, the court can only guess at whether Shepherd was actually driving a vehicle, or whether he was just found sitting in the driver seat of a parked car.

“In circumstances such as these ... this Court holds that it is the state’s burden to prove beyond a reasonable doubt not merely that this out-of-state conviction occurred, but also that the conviction arose from conduct that meets the definition of an (intoxication-related traffic offense) under Missouri Law,” the justices wrote.

Because prosecutors failed to present any additional evidence to that effect, the four ambiguous cases can’t be counted as prior offenses, the Supreme Court ruled.

The case is now being sent back to the trial court for a new sentencing, allowing up to three prior convictions to be considered. Under Missouri’s system of escalating penalties, that would allow for a maximum of seven years in prison, including the time Shepherd has already served. No new evidence will be allowed for consideration beyond what was presented at trial.