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12-21-2011


Panel wants more info
on Boggs’ DWI case
Judge can’t take further
action at this time


by Valerie Verkamp and Ivan Foley
Landmark staff

A writ panel in Missouri’s Western District Court of Appeals has stopped a judge from taking any further action in the James Boggs DWI case until the panel receives briefs and then schedules oral arguments.

Boggs is a well-known Platte County attorney who was serving as municipal judge for the city of Weston at the time of his arrest on a DWI charge last January. Boggs has also served as a member of the Sixth District Judicial Commission, a board that is involved in recommending appointments for Platte County Circuit Court judgeship openings to the governor.

There are two court cases involving Boggs’ DWI arrest--a criminal charge and a case of Boggs vs. the Missouri Director of Revenue, which will decide whether Boggs can keep his driver’s license in spite of his DWI arrest. Authorities say Boggs refused a breath test on the night of his arrest.

Typically when someone suspected of DWI refuses a breath test, the defendant loses his license for a year. But the accused can petition the department of revenue (DOR) in an effort to not lose the license. Boggs, being represented by his son, attorney Christian Boggs, has been carrying on that fight since his arrest.

Platte County Prosecutor Eric Zahnd had filed the writ, which in effect is an appeal of recent decisions made by Judge Gerald McBeth of Vernon County, last month.

McBeth recently ruled in favor of Boggs’ request to have the prosecutor’s office disqualified from representing the DOR in the case. The DOR then requested to have its own staff attorney represent the director in the matter. McBeth then issued an order disqualifying the director of revenue as co-counsel.

McBeth announced the court would conduct a “diligent search” for a special prosecutor to be named in the case. McBeth on Nov. 2 announced he would be appointing Steve Salmon of Clay County as special prosecutor. Salmon is a criminal defense attorney.

Salmon is a former law partner of Platte County Associate Circuit Court Judge Thomas Fincham. Early in the Boggs vs. DOR case, Fincham on multiple occasions granted a stay of revocation, keeping Boggs’ driver’s license in effect pending a court hearing on the matter. Such stays of revocation are not unusual, though it seemed unusual to some observers at the time that Fincham was hearing matters involving Boggs, given that Fincham had been recommended as one of the finalists for his judgeship by the commission on which Boggs served.

After a Landmark article in May mentioned the connection, the case was reassigned to a new judge. Charles Curless was then assigned as the new judge, but after a request for a replacement was filed by the prosecutor, McBeth was then appointed.

Within the writ, Zahnd requested the court of appeals to overrule Judge McBeth's decision that disqualified the Platte County Prosecuting Attorney's Office to serve as counsel for the director of revenue, as well as his decision to disqualify the director's staff counsel.

Zahnd wrote in his appeal: “[N]o general conflict arises as a result of the prosecuting attorney's appearance in both (civil and criminal) cases.”

Boggs’ argument in the petition he filed with the court suggests there would be a conflict of interest if the prosecutor's office represents the director of revenue in the civil case.

The Missouri Western District Court of Appeals determined to grant a preliminary writ of prohibition that prevents Judge McBeth from taking any further action until additional briefs are filed with the court on this matter.

Additionally, oral arguments will be heard following the filing of these briefs. The writ panel consisted of court of appeals judges Thomas Newton and Alok Ahuja.

Sources not connected to the Boggs case told The Landmark that it is extremely unusual that a writ panel has called for oral arguments to be scheduled.

Until the writ panel hears more arguments, Boggs’ will be allowed to continue to have an active driver’s license.

The writ panel made its order for briefs on Dec. 6. Boggs’ side has 20 days from that date to file its brief, then the state has 10 days after that to file a reply brief.

“Afterwards, this court will schedule oral arguments,” the preliminary writ of prohibition states.

Boggs was arrested last Jan. 28 after his vehicle became stuck in a ditch along M Highway at Nichols Road near Weston. A Platte County sheriff’s deputy made the arrest. Boggs was released after posting a $1,000 bond later that night. Though the incident occurred in January, the official criminal charge against Boggs was not made by Zahnd’s office until May.

Zahnd told The Landmark in May that the charge was filed “after an extensive investigation was conducted by the sheriff’s department.”

A review of his driver’s license history Boggs filed with the court in his petition to keep his driver’s license shows at least one previous alcohol-related suspension.

Boggs’ record shows a suspension of his driver’s license occurred on March 18, 2004. His license was reinstated three months later, on June 11, 2004.

That suspension was tied to an incident that occurred on Feb. 25, 2004. His blood alcohol content in that offense, as described by the driver’s license records filed with the court, was .231, which is nearly three times the current legal limit of .08.