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Driving While Intoxicated

Kristen McLain and her brother John remembered their uncle, Russell McLain,
on December 8, 1996, at the annual prayer vigil held by the Mothers Against Drunk Drivers .
Russell McLain was killed by a drunk driver in Cape Girardeau in 1990.



The Cape Girardeau County Prosecuting Attorney’s Office vigorously prosecutes driving while intoxicated offenses. These cases make up 15% to 20% of the 2,000 cases filed by the office.

Far from being a "victimless" crime, DWI kills. Approximately 25% of all fatal accidents in Missouri involve alcohol. Southeast Missouri is not immune. Each year near Christmas, the local chapter of the Mothers Against Drunk Drivers holds a candlelight prayer vigil to remember area residents killed by drunk drivers.

Drunk drivers in Missouri who kill someone are prosecuted for either second degree murder or involuntary manslaughter, depending upon the facts of the case.

Drunk drivers who are caught before hurting someone are prosecuted for driving while intoxicated or driving with an excessive blood alcohol content. Whether the crime is a misdemeanor or a felony depends upon the number of prior offenses of the defendant. A third offense is a felony.

A recent study done by the Prosecuting Attorney’s Office showed that close to 75% of the felony drunk drivers prosecuted in Cape Girardeau County go to prison. The few who get probation are usually getting a combination of in-patient alcohol treatment and county jail time as conditions of probation.

"I think prison is the best deterrent for drunk drivers, especially now that they can get effective alcohol treatment while in prison," said Prosecuting Attorney Morley Swingle. "The judges in our Circuit have been very good about backing up our efforts to both rehabilitate and punish drunk drivers."

First offenders usually get probation, with an alcohol and drug evaluation and follow-up treatment as a condition of probation. Second offenders usually get some time in the county jail combined with alcohol treatment programs. Third offenders become felony cases and are most likely going to prison.

The crime of drunk driving, unlike many other crimes such as robbery or burglary, crosses all social and economic lines. Defendants range from bankers and lawyers to the unemployed and indigent.

"No matter who they are," Swingle says. "Our judges treat them the same. "No one can drive drunk in Cape Girardeau County without facing the consequences."

Missouri’s State Mothers Against Drunk Driving organization awarded Swingle with a plaque in 1992 for his work in prosecuting drunk driving. He has taught DWI issues at seminars sponsored by The Missouri Bar, the Missouri Association of Trial Attorneys, the National Highway Traffic Safety Administration, Mothers Against Drunk Driving and numerous local law enforcement agencies.

Under Swingle, the Cape Girardeau County Prosecuting Attorney’s Office has aggressively pursued drunk driving cases. In 1998, Swingle authored an amendment to the DWI laws turning a misdemeanor DWI into a felony if the defendant has previously killed someone while driving drunk. His office established the case law in Missouri that enables prior convictions from other states to be used as prior convictions. State v. McCoy, 815 S.W.2d 498 (Mo. App. 1991). He personally argued to the Court of Appeals a case upholding DWI sobriety checkpoints in Missouri. State v. Payne, 759 S.W.2d 252 (Mo. App. E.D. 1988).

"The campaign against drunk driving is definitely working," Swingle says. "More people are taking precautions like having designated drivers. The advocacy groups, the legislators, the law enforcement officers, the prosecutors and the judges are gradually making a difference."

The work is not over, though.

"If the Missouri legislature lowers the legal blood-alcohol limit to .08 from its current .10, our roadways will become immediately safer. I’m hoping this will be the year that particular legislation finally passes."







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