In the criminal justice system, when a charge is dropped or dismissed because of mistakes by the police or prosecution, some people complain that a guilty individual went free because of a technicality. Of course, if they are not convicted, the are not guilty. And in too many cases, that “technicality” is often one of the bedrock principles of American jurisprudence.

When law enforcement illegally searches a person or residence without a warrant, the items discovered during that search may be suppressed and not allowed as evidence due to the illegality of the search which violates the Fourth Amendment of the Constitution.

Other cases may involve coercion by police or prosecutors in obtaining a “confession” by duress. When that “confession” is tossed as violating the Fifth Amendment, it can compromise a prosecutor’s case.

These situations often lead to cries of outrage over the dismissals due to “technicalities.” The Constitution and its amendments are never technicalities, they are fundamental to the rule of law in the United States and law enforcement, above all other entities, must adhere to that law. Most law enforcement officers in the U.S. are required take an oath of office to uphold the Constitution.

However, there are situations in the criminal justice system where there are genuine “technical” mistakes. Earlier this year, the Missouri Supreme Court found that an error in the statutes that required breathalyzers used in DWI cases to be calibrated to “0.04, 0.08 and 0.10” meant exactly that. The word “and” was supposed to be “or” but the mistake was missed and the regulations were published.

Because most breathalyzers would not have been calibrated to the correct standard, most of their readings made during this period would be invalid, placing many DWIs prosecutions in jeopardy. Prosecutors have argued the legislature should have fixed this in the last legislative session, but there were questions concerning the validity of such a retroactive change. While it would fix the statute, such a change by the legislature could be challenged as violating the prohibition against Ex Post Facto laws.

This constitutional prohibition prevents legislatures from going back in time and making some conduct a criminal offense years after the conduct occurred, as such laws could be completely arbitrary. They are inherently unfair and unjust in most cases as you would not avoid the conduct because you would not know it was illegal.

This error shows the importance of careful proofreading when the state publishes its laws.

Source:, “Typo in state law may clear some Missouri drunk drivers of charges,” May 18, 2016