The Missouri Supreme Court has sided with a former Warren County presiding judge, the late Wes Dalton, in allowing a drunk driving charge to go to trial.Willis L. McCree, 55, of Lake Sherwood, was arrested in April 2016 for driving while intoxicated and driving with a revoked license. In 2017, McCree petitioned Dalton to dismiss the drunk driving charge. After a hearing in September 2017, Dalton denied the request and ruled that the case would proceed to trial.McCree appealed the ruling, arguing that state law mandates the DWI charge be dismissed because of a lack of evidence, and that Dalton had abused his judicial discretion. An appeals court upheld Dalton’s ruling, and now so has the Missouri Supreme Court with a 4-3 vote.The criminal charges await action in Warren County Circuit Court under current Presiding Judge Jason Lamb.At issue in the Supreme Court case was whether Dalton had a judicial obligation to dismiss the DWI charge because blood tests showed McCree’s blood alcohol concentration was below the legal limit. Court documents state two blood analysis samples returned alcohol concentrations of 0.052 percent and 0.039 percent. The limit for driving is 0.08 percent.In a petition to the Supreme Court, defense attorney Dominic Cicerelli cited a state law that says DWI charges without a 0.08 blood test must be dismissed unless prosecutors present additional evidence. But during a September 2017 hearing, Dalton refused to dismiss the DWI charge, even though he received no additional evidence, Cicerelli said.Warren County Prosecuting Attorney Kelly King represented Dalton during a Supreme Court hearing in November. In a written brief for the court, King argued that Dalton had no obligation to hear evidence in the case or make a final decision to dismiss the DWI charge prior to a jury trial.Four Supreme Court judges sided with Dalton. In the written opinion of the court, Judge Mary Russell notes that although state law does require more evidence, it doesn’t require that evidence to be heard prior to trial. Dalton also had the authority to reverse his decision and dismiss the DWI charge after hearing the evidence at trial, Russell wrote.Even if McCree is convicted at trial, Russell said he will still have the option of appealing to a higher court based on lack of evidence.“When the judgment becomes final, if McCree is unsatisfied with the result, he will have the opportunity to argue on appeal that the state fail to meet its burden (of proof),” Russell said.Three members of the Supreme Court disagreed with the majority’s decision. Writing for the dissent, Chief Justice Zel Fischer said the intent of the law is that a judge must “weigh the sufficiency of the state’s evidence” at the time a request is made to dismiss a DWI charge.The state law which allows defendants to seek dismissal of DWI charges, Fischer said, “is expressly intended to ... bring an early resolution to cases when there is not sufficient competent evidence to proceed to trial.”Criminal proceedings against McCree for the DWI and driving while revoked charges have been postponed while the upper courts deliberated his case. The status of the charges will be reviewed at a hearing April 2 in Warren County Circuit Court. No new trial date has been set.Court gavel