Missouri Injury Law Blog

Under Missouri dram shop statute, the victims of Missouri personal injury or the family of the Missouri wrongful death victim caused by an intoxicated or drunk driver may have a cause of action against the establishment that served the Missouri drunk driver that caused a car crash or hits a pedestrian.

Missouri Statute § 537.053, Sale of alcoholic beverage may be proximate cause of personal injuries or death

... a cause of action may be brought by or on behalf of any person who has suffered personal injury or death against any person licensed to sell intoxicating liquor by the drink for consumption on the premises when it is proven by clear and convincing evidence that the seller knew or should have known that intoxicating liquor was served to a person under the age of twenty-one years or knowingly served intoxicating liquor to a visibly intoxicated person.

How do you prove by "clear and convincing" evidence that the bartender knew or should have known the drunk driver was "visibly intoxicated"? See St Louis Injury Attorney Article: ... Proving the Other Driver was Intoxicated

However, in a Missouri dram shop lawsuit, proving "visible intoxication" is more difficult than simply showing the driver was legally intoxicated. For example, under the above dram shop statute, Missouri Statute § 537.503, blood alcohol content is simple relevant to proving a person was visibly intoxicated, but does not prove it. So what else, clearly a St Louis DWI personal injury lawyer would hire a toxicologist to testify, but what about testimony from someone else at the bar that served the at fault driver? the bartender? they obviously are not going to admit they served a visibly intoxicated, so you are left with tracking down other patrons at the bar, which is hard enough, much less finding one that remembers the drunk driver who caused a car accident and that they were visibly intoxicated.

So is an eye witness required? Recently a Missouri trial court ruled through summary judgment that eye witness testimony is required to prove that the Missouri drunk driver who caused a car accident was visibly intoxicated at a bar in order to be able to hold that establishment liable under Missouri's dram shop law. This issue is currently up on appeal and for an excellent analysis of the Missouri dram shop law and its application see: Amicus Brief - Missouri Dram Shop Law Appeal regarding Proof of Visible Intoxication

Continue reading "Drunk Driving Accident Lawsuits in Missouri - Making a Negligence Claim Against the Bar that Over-Served the Missouri Drunk Driver " »

A recent verdict in a DUI accident was handed down, the jury found the driver grossly negligent and awarded some punitive damages, but the amounts were curiously low, especially for a drunk driving accident case. Jury Finds Band Leader Grossly Negligent, but Slaps Him on Wrists The jury awarded less then $100,000 to the injured passenger who sustained about $40,000 in past medical bills. Additionally, only $20,000 in punitive damages from the DUI injury accident.

As a St Louis DWI car accident and injury lawyer, I find this amount to be insufficient in light of the facts; I believe the jurors in the above case went easy on the driver because he is a local celebrity and he was severely injured in the accident suffering a brain injury requiring multiple surgeries. Perhaps the jury believed his injuries were punishment enough.

We have handled Missouri and Illinois drinking and driving injury accidents with less in medical bills but received fro more in compensation or our clients:

DUI Injury Lawyer - Illinois drunk driving accident injury case settles for policy limits

Illinois DUI Accident and Brain Injury Lawsuit - Settles for $575,000

St Louis Missouri DWI Accident Lawyer gets Judgment for 2.3 MILLION

Illinois DUI Accident Injury Claim, Lawsuit settles few Weeks before Trial for Policy Limits

Continue reading "DWI Bus Accident Injury Lawsuit....verdict insufficient? " »

As a bicyclist myself and a St Louis Missouri bike accident injury lawyer, I have handled dozens of bike injury cases and spoke with many cyclists I ride with about being hit by cars and who were lucky enough not to be thrown off their bike or injured. See St Louis bike injury lawyer discusses common causes of bike accidents and injury

Most commonly, personal injury to bike riders being hit by cars is the result of driver inattention and negligence. A close second however, is bike riders being struck in the summer evenings by drunk drivers. See Missouri bike rider struck by drunk driver and suffers extensive personal injury

In the above mentioned St Louis drunk driving bike accident, the police did an excellent job investigating the accident and making sure they tested the driver for intoxication. Police investigation of a potential Missouri drunk driving accident is critical to a personal injury lawsuit because if the police do not investigate immediately it is almost impossible to later prove the driver was intoxicated; unless they admit it (good luck!) or there is credible observation and evidence from a witness proving intoxication. See Missouri Personal Injury Trial Evidence - Proving Driver was drunk with Lay Witness Testimony

Fortunately, a distant third, are bike accidents and injuries intentionally caused by the driver, these types of situations have recently gotten some national attention as some prosecutors and law enforcement are starting to investigate these cases more thoroughly and look into to prosecution. See the following:

Bike Accident and Injury Intentionally Caused by Doctor?

Bike Accident and Injury Caused by Road Rage

Also see Missouri Injury Law Blog - Missouri Bicycle Accident and Injury Cases

A wrongful death lawyer has filed a wrongful death lawsuit and negligent road design lawsuit on behalf of the family of a deceased Pennsylvania teen. The wrongful death lawsuit stemming from a drunk driving accident, alleges negligent design and maintenance of the road and that it contributed, not the sole cause, of her death. This particular road had a 55 mph speed limit and a 4-inch drop-off between the road and the shoulder not to mention the drop-off is located on a curve in the road.

The wrongful death lawsuit specifically alleges that the department of transportation did not level the road properly when they upgraded that section after two other teens were killed in car accidents at this same location. The prior accidents are crucial to the negligence claim as the dept of transportation was clearly on notice of the defect and should have corrected it.

On top of the negligent road design, the driver was intoxicated and that clearly contributed to the wrongful death car accident as well. Also, the deceased teen was not wearing her seat-belt at the time; however, under the law of most sates, and certainly in Missouri, evidence of the victim not wearing their seat belt is generally not admissible into evidence at a wrongful death or car accident injury trial. The driver allegedly attempted the curve in the road at this high speed, dropped off the road onto the shoulder, over-corrected and collided into an elderly couple in an oncoming car before his truck was stopped by a guardrail.

The Dept. of Transportation has since dropped the speed limit to 50 mph on this road, paved the shoulders, and added guardrails, reflectors, and rumble strips. All of these precautions will help to prevent such sad and tragic accidents in the future.

Article: Wrongful Death Lawsuit against Pennsylvania Department of Transportation

Continue reading "Wrongful Death and Drunk Driving Car Accident Lawsuit combined with Negligent Road Design" »

As a St Louis personal injury law firm handling car accident and other types of injury cases involving intoxicated or drugged individuals who caused the accident or injury, proving intoxication is critical to maximizing value of my clients' cases.

In many cases the at fault driver that caused the truck accident and injury is charged with DWI or other intoxicated related offense and the police officer's investigation can often be piggybacked by injury lawyers to show intoxication. However, not all cases are properly investigated by police officers or investigated for intoxication at all.

What other evidence is there to show intoxication? Because I guarantee the at fault driver will not admit it, especially after their insurance company and their lawyers have gotten to them.

One example is a Crawford county Missouri drunk driving head injury case we are currently handling. My client was thrown from a vehicle as a result of the driver's erratic driving in a resort area and in a private parking area and driveway. The driver stopped and witnesses called the police, however, prior to the police arriving the driver hid and was never interviewed by the police. So in this case we need to use the lay witnesses to prove intoxication. Luckily a security guard witnessed the incident, observed the driver after she exited the vehicle, and called the police.

Under Missouri law a defendant may be proven to be intoxicated by any witnesses who had a reasonable opportunity to observe him or her. State v McCarty, 875 S.W.2d 622 (Mo Ct App 1994)

Whether a defendant is intoxicated may be proven by any witness who had a reasonable opportunity to observe him. State v. McCarty, 875 S.W.2d 622, 623 (Mo. App.1994); State v. Corum, 821 S.W.2d 890, 891 (Mo.App.1992).

[I]ntoxication is a "`physical condition usually evidenced by unsteadiness on the feet, slurring of speech, lack of body coordination and an impairment of motor reflexes.'" [State v. Ruark, 720 S.W.2d 453 (Mo.App.1986) ] at 454 (quoting State v. Blumer, 546 S.W.2d 790, 792 (Mo.App. 1977)).

Lay witnesses need to convey factors such as opportunity to observe the defendant, knowledge of drinking earlier in the day, balance, motor skills, bloodshot eyes, erratic driving, smell of alcohol, etc... Granted it is always better to have a trained police officer than a lay witness, but the lay witnesses testimony is admissible for the jury to then decide.

Continue reading "Evidence in Missouri Drunk Driving Car Accident Injury Case: Proving the Other Driver was Intoxicated" »

When can prior criminal history be used in a Missouri personal injury trial? As a St Louis injury lawyer handling drunk driving accident injury cases, this often comes up as sometimes not only is the driver intoxicated but sometimes my own client has a criminal history. How does that affect the St Louis car accident or other injury case at trial?

Under Missouri Statute § 491.050

"Any person who has been convicted of a crime is, notwithstanding, a competent witness; however, any prior criminal convictions may be proved to affect his credibility in a civil or criminal case[.]"

So if a witness has been convicted of a crime, that can be used to impeach them and attack their credibility during a St Louis personal injury lawsuit trial. However, what if they plead guilty but did not get convicted and instead received probation, also known as an SIS (Suspended Imposition of Sentence) in Missouri? Two things need to be considered:

(1) If the only purpose is for impeachment (attacking their credibility) then no, an SIS is not admissible.

This issue was addressed in State v. Hansel, 629 SW 2d 509 (MO Ct App ED 1981). For purposes of § 491.050 a suspended imposition of sentence (SIS) is not a conviction because sentence has not been pronounced or imposed.

(2) But what if the negligent driver received an SIS on a charge related to the accident? OR an SIS for any charge related to liability?

I have handled multiple Missouri and Illinois personal injury cases resulting from a drunk driver, and oftentimes in these cases that person is charged as a result of the accident and it is their first offense. In Missouri most first time offenders are eligible for an SIS to avoid a conviction; so is the SIS admissible to prove they were drunk at the time of the Missouri car accident?

YES, because when someone gets an SIS they have to plead guilty which is an admission of guilt. So if they plead guilty to DWI that resulted in an accident then a good personal injury attorney knows they have to admit that they admitted they were guilty when asked. So the SIS or probation is not admitted into evidence, but the admission of guilt is.

Continue reading "Trial Evidence in Missouri Personal Injury Lawsuits - Can a Personal Injury Lawyer Admit into Evidence an SIS (Suspended Imposition of Sentence - probation in lieu of a conviction)" »

In February 2009 the injury law firm of Sansone Law llc was retained to represent a St Louis area pedestrian that was dragged by a drunk driver after the pedestrian attempted to assist the Missouri drunk driver who appeared passed out at his wheel in the middle of the road. See, Pedestrian and Good Samaritan Injured by Drunk Driver

See St Louis attorney Ben Sansone's other Missouri and Illinois personal injury settlements and verdicts HERE - Personal Injury Settlements and Verdicts

Continue reading "Missouri Drunk Driving Accident Lawyer Ben Sansone Obtains St Louis County Judgment of $2.3 Million" »

Staff Article - Erin Mace.

We have discussed driving while texting, (or "DWT"), in a previous Missouri Personal Injury Law blog article, but I recently read an article that was titled, “Texters, you’d be better off driving drunk” and thought this would be a good follow up.

On September 21, laws regarding driving while texting were the major topic at the Transportation Department’s Distracted Driving Summit. They discussed why cell phones, combined with moving motor vehicles, are so deadly. They also discussed why it has been so difficult to define this danger which is the root cause to many car accidents and personal injuries.

According to recent studies, driving while texting is more deadly than being legally intoxicated while driving. This study found that cell phone users had a much slower reaction time than those who were drunk. A test subject, with a 0.08 blood alcohol content and driving 70 mph, was made to break suddenly. He traveled approximately 4 feet “beyond his baseline performance”. A completely sober subject performed the exact same test; the only difference was he was reading an e-mail at the time he was made to break suddenly. He traveled 36 feet beyond the baseline result. While sending a text message during the test, subjects traveled 70 feet.

In a recent poll they found that in 2009, Americans text 15 times more the number of messages than in 2005. Most drivers said that they would ban texting while driving, even though these are the same ones that admitted to engaging in this activity.

There have been many different ideas proposed for stopping people from cell phone use while driving. As we discussed in the previous blog, laws have been passed, foundations have been formed, and bumper stickers made. None of these things seem to be working. This is because the penalties are quite lenient, and the fines that are imposed are less than speeding fines.
Missouri DUI laws are some of the most relaxed in the country – and they are still somewhat strict. DUI laws around the country vary from minimum fines of $200 to $1,500, license suspension from 90 days to one year, and jail time from 48 hours to 2 years. States with driving while using a cell phone fines typically are $20.00 for the first offense and $50.00 for each successive violation.

If driving while using a cell phone, in any capacity, is more dangerous than driving while legally intoxicated, why are the laws less stringent than DUI laws? How do the police officers enforce these laws that more and more states are trying to implement? The problem with driving while using your phone is a cognitive problem – a distraction in the mind more so than a physical distraction. How do you regulate distraction while driving? At some point law makers will have to remove car radios to be consistent.

I am currently taking some Criminal Justice classes. My class is mostly comprised of police officers so I asked them these same questions and the majority responses somewhat shocked me. They said that the DUI laws are too strict in some aspects, driving while texting is a fairly new problem, the texting laws are almost impossible to enforce, and – my favorite – there is no need for these laws, as we already have laws that cover what texting while driving causes (i.e. swerving, running stop signs, speeding, and accidents).

They also said that they see more accidents from drivers messing with their car radios than messing with their phones. Some municipalities are adding what will appear as an addendum-like charge to a careless and imprudent violation. This will allow the fine to be raised but that is all.

Just as Missouri does not list “driving with no seatbelt” as a primary offense, they will not have "driving while using a mobile device" as one either.

Each year in the United States there are well over 1 million people who suffer from some sort of Traumatic Brain Injury (TBI). Of that, between 50,000 and 100,000 people die from a TBI incident and approximately 80,000 to 90,000 are left with some sort of long lasting TBI impairment. Often times those injured must report to a hospital and/or specialty care facility and undergo some kind of rehabilitative treatment, like that offered at CareMeridian. While TBI can be caused by any number of incidents, falls, assaults, etc. many (as much as 20%) are caused by automobile accidents. Many of these automotive accidents are due to drunk or impaired driving. Young adults have a high incidence of TBI due to automotive accidents, and a large number of these involve alcohol or other mentally impairing drugs.

While drunk driving related Traumatic Brain Injuries are high there are measures that can be taken to prevent such incidents, the most important being don’t drive when impaired by alcohol or any other mind altering substance. Drunk driving is illegal in all 50 states and due to the recent increased enforcement of these laws TBI incidences have been on the decline. Nonetheless precautions should always be taken to reduce the likelihood of a drunk driving accident.

Record Missouri Verdict - Drunk Driving Accident in Franklin County

Recently a Franklin County jury returned a massive Missouri wrongful death verdict stemming from a death resulting from a drunk driving collision. Sansone Law has handled multiple drunk driving personal injury cases and often the likelihood of these massive verdicts facilitates very favorable settlements in favor of our clients.

Our prior Missouri and Illinois drunk driving personal injury settlements and ongoing cases:

Illinois drunk driving lawsuit - settled for policy limits

$575,000.00 Settlement - Traumatic Head Injury resulting from Illinois drunk driving collision

Good Samaritan injured by Missouri drunk driver, ongoing St Louis personal injury lawsuit

Four Illinois teens severely injured in Illinois drunk driving collision - personal injury lawsuit filed.

Drunk Driving accident case referred to Sansone Law for personal injury lawsuit and trial

Auto dealer vehicle involved in drunk driving accident - Personal injury claims of negligence, recklessness, and negligent entrustment

Back in early 2008 we were retained as the injury lawyers by the victim of a Belleville Illinois drunk driving crash at a major intersection. Initially, the victim retained a different personal injury law firm who secured a settlement offer of just under $50,000, however, the victim did not want to accept and the previous attorneys did not believe the case was worth more than that offer. We immediately filed a lawsuit on her behalf and eventually settled the case for the policy limits of $100,000.00.

The personal injury lawyers at Sansone Law at not looking for a quick settlement but will put all the necessary hard work into your case to make sure the absolute best result is obtained, as in the case above.

Our Missouri and Illinois personal injury law firm has handled and is currently handling many drunk driving accident cases in Missouri and Illinois. Personal injury lawyer Ben Sansone spent many years of his practice defending DWI cases and has extensive knowledge of all the tests, procedures, and facts necessary to prove the other driver was intoxicated in the civil case and thus open the defendant up to aggravated liability.

See below links of previous posts regarding the above case:

Illinois Drunk Driving Personal Injury Lawsuit

Illinois Drunk Driving Lawsuit - Complaint with Punitive Damages

The above link discusses an Illinois Complaint that includes punitive damages. In both Missouri and Illinois the rules of civil procedure require you initially file the lawsuit without punitive damages claim, gather the necessary evidence to support a punitive damages claim then file a motion for leave to amend the complaint and add punitive damages. This is technically the rule, however, it has been my experience that if you initially file the punitive damages claim by the time the defense files a motion to dismiss based on the plaintiff not obtaining leave as described above, the evidence has already been gathered and the court will grant the leave for punitive damages at the same hearing the defense is trying to get it stricken.

this is the approach I take when the evidence is overwhelming that the driver was intoxicated and we usually have evidence of a plea of guilty or a conviction prior to filing the case.

The recent enactment of legislation in Missouri requires an ignition interlock on drivers who have been convicted of two or more DWI charges, thus making the roadways safer for all drivers. RSMo. 577.600 upheld that this is required on all vehicles that are operated by such repeat convicted offenders and is a required condition of the limited driving privilege for a short period. Only three states in the nation do not have any laws that require ignition interlock devices: Alabama, South Dakota, and Vermont. However, the rest of the nation believe that mandatory ignition interlocks are a necessary need for repeat DWI offenders; 85% of the general public agree with this law and offenders themselves believe it is essential towards helping to curb their addiction with drinking and driving.

Missouri was one of the first states to implement this law for repeat offenders; ten other states have issued the law as prudent for first time DWI offenders, while many other states offer discretionary status of the law. The ignition interlock has been hailed as one of the most effective tools in the fight against drunk driving. Statistics in Missouri alone have revealed that almost 20 percent of highway deaths are a result of drunk driving, many of which were double the legal limit. This new device helps in ending the decades long debate against drunk driving while not infringing on public liberties. It is more useful in noting that offenders themselves believe this sanction to be fair and effective in forcing them to remain sober when operating their vehicle.

The ignition interlock device works by requiring the driver to blow into a type of breathalyzer which does not turn on the engine if the BAC is higher than a predetermined amount, usually around .025 in Missouri. Additionally, many interlock devices now require that the driver blow into them a second time while the car is in motion to guarantee that the driver themselves was the person blowing into the device (many times, a friend initially blows into the device). This second testing is not mandatory on all of the devices, but is an important aspect to guaranteeing the safety of roads from repeat offenders. If the driver fails this test, however, the car does not shut itself off as this is dangerous on a busy street, but rather sets of the alarm and causes the car to honk and flash unless the vehicle stops. This is important to alerting law enforcement to the driver’s condition; the device itself cannot stop the car once it is running, but this method is effective in causing the driver to stop the car.

Thus far, the device has been very effective in curbing the persistence of drunk drivers who continue their repeat behavior after multiple convictions. While many states have passed this law after first-time offenders, Missouri remains in the range of multiple convictions. It therefore becomes important to decide whether or not it should be made a mandatory device of first-time offenders. Organizations such as MADD list the fact that most first-time offenders have driven drunk around 87 times before they are pulled over for a first offense. This consequently determines that the device should be mandatory for many first-time offenders because of their previous actions, although Missouri has yet to include this in the law thus far. The addition of this law in general has proven to be a milestone in preventing repeat drunk drivers and has helped to ensure the general public’s safety on roadways.

This post was contributed by Kimberly Peterson, who writes about the criminal justice degree online. She welcomes your feedback at KimPeterson2006 at gmail.com

This was a contribution by a visiting author not associated with Sansone Law, LLC and does not necessarily reflect the opinions or positions of Sansone Law, LLC or Missouri InjuryLaw Blog or any of its personal injury lawyers or staff.

If you are the injured victim of a drunk driving accident in Missouri, Illinois, or any other state your personal injury lawyer should know that the drunk driver cannot insulate himself from liability by declaring bankruptcy. The Federal bankruptcy law is very clear on this point. See, 11 U.S.C. § 523(a)(9) exceptions to bankruptcy discharge include "(9) for death or personal injury caused by the debtor’s operation of a motor vehicle, vessel, or aircraft if such operation was unlawful because the debtor was intoxicated from using alcohol, a drug, or another substance"

As discussed in a previous entry, I am currently handling a case where a drunk driver slammed into the rear of my client's car when she was waiting at a stop light in Belleville IL. See Drunk Driving Car Accident Picture and ALLSTATE UNDERHANDED NEGOTIATION TACTICS Allstate has refused to settle the case for a reasonable amount and when my client refused to accept their low offer Allstate, through their insurance lawyers and the insured drunk driver, threatened that their insured, the drunk driver, would declare bankruptcy if my client did not take their low offer for settlement of her Illinois drunk driving personal injury claim as a result of Allstate's insured drunk driver.

After calling Allstate out on their misrepresentation about the law they now claim, through their lawyer, that only punitive damages would be prevented from discharge in bankruptcy and all the compensatory damages would be discharged; another blatant misrepresentation of the law. The motivation behind this bad faith action by Allstate is two fold:

1. They want their insured feel safe that any judgment over the policy limits will not come back on him personally. This is done to explain to their insured why they are not settling a drunk driving case within policy limits when we are willing to do so. Thus opening their insured up to an excess judgment.

2. Allstate, through their lawyers, are hoping that I am stupid and will fall for their threat of bankruptcy and convince my client to take their low offer. Fortunately, I did not sleep through law school. Additionally, as a Missouri and Illinois personal injury lawyer, I have argued this point in past cases in federal court, and it is clear that a drunk driver's liability cannot be discharged.

Allstate is willing to sell out their insured and make ridiculous legal claims in order to save a buck and try to protect a drunk driver that seriously injured my client. This is coming from the self proclaimed "Good Hands" people, that when they take off those white gloves expose their truly dirty hands with their bad faith negotiation tactics.

SAMPLE PETITION - Prevent Discharge of Judgment or other Debt Arising From Drunk Driving Car Accident - Prevent at Fault Drunk Driver from Avoiding Liability by Declaring Bankruptcy

I handle a lot of DWI and DUI cases in Missouri and Illinois and have seen a lot of very interesting cases. As a DWI lawyer, it is disturbing, the number of cases wherein the police blatantly step over the line of proper policing by consistently stopping people solely on the the gamble that if a person is driving late at night on a weekend, and particularity a holiday weekend, that they are drunk driving.

Two drunk driving cases I recently handled last month highlight this abuse and the descriptions below are based on undisputed facts:

1. Designated driver goes through a sobriety checkpoint in a convertible, police officer interviews him briefly, indicates he is fine, and tells him to proceed. Well, the driver was taking his friends to a local gas station for beer and on the way back the same officer accused him of drinking and driving and ran him through a battery of field sobriety tests and arrested him without probable cause, why? because there was a case of beer in the back of the car. No other possible explanation for the harassment.

2. Police stop my client who was driving an ATV, specifically, a Rhino 660, which is a side by side seater 4 wheeler that essentially looks like a small jeep. The officer stopped him because he was on the road for a brief time to get to his neighbors property. The officer arrested him for DWI and illegal operation of an ATV on the road. Again, ridiculous! The Missouri definition of an ATV that is illegal to drive on the road is less than 600lbs, straddle seating as opposed to side by side, handlebars as opposed to a steering wheel, and less than 50: wide. My client's vehicle clearly, upon simply looking at it, did not fall under any of these specifications.

My advice to the police, enforce the laws on the books and stop using the ends to justify the means of arrest through harassment an blatantly unfounded charges. I vigorously fight these cases.

To my dismay as a DUI and DWI Lawyer, Gov. Matt Blunt recently signed legislation closing a claimed "loophole" in Missouri law that required the use of a non-alcohol swab when taking a blood test. If an alcohol swab is used the result is inadmissible in court.

How is this a loophole? Requiring police to properly administer a blood draw, that's a loophole? It is not difficult or unreasonable to require the use of an iodine swab or other permissible disinfectant, in fact most police carry blood draw packs that have all the necessary and previously allowed disinfectants.

On July 2, 2007 HB 574 was signed into law. It was prompted by a 2004 DWI arrest of Rep. Charles Portwood, R-Ballwin, following a one vehicle accident when his vehicle ran through a fence and hit a pool house.

The Officer that arrested him used an alcohol swab to draw the blood, therefore, the result was inadmissible and supposedly forced the prosecutor to drop the case. This is the excuse used to pass this law.

Fact is, almost everybody who refuses a test (therefore no BAC result) are still prosecuted, why? because your demeanor, smell, speech and other factors observed by the officer are admissible to show intoxication and are enough to convict you, granted it makes it harder.