Shayne Healea's lawyer said Columbia police violated Healea's constitutional rights and state laws after they arrested him in October 2014.
An assistant attorney general, acting as a special prosecutor in the case, argued last week police didn't violate those rights - so the courts shouldn't accept his request to stop the case.
But Healea's attorney - Shane Farrow, of Jefferson City - argued in an 11-page response to the state's response "the state fails to understand the issue presently before the Court (and) has chosen to take a stance that the facts, as they see them, somehow alleviate the Court's responsibility, as well as their own, the the Constitution of the United States, the state of Missouri and other relevant state and federal laws."
Healea, who is Moniteau County's prosecuting attorney, was to be tried last week in Shelbyville - on a change of venue from Boone County - on five felony charges, including leaving the scene of an accident where there was an injury or property damage, and four counts of second-degree assault for operating a vehicle while intoxicated, resulting in an injury.
The trial was postponed after Farrow moved on Oct. 3 to cancel the trial, arguing Columbia police had violated Healea's federal constitutional rights to have a private conversation with his attorney.
And in a follow-up motion responding to the state's response to Farrow's first motion, Farrow added a claim the police actions also violated a state law requiring a law enforcement agency to have a private space available for such a conversation.
That law states: "It shall be the duty of every person in charge of a jail, police station, constable's or sheriff's office, or detention facility to make a room or place available therein where any person held in custody under a charge or suspicion of a crime will be able to talk privately with his or her lawyer, lawyer's representative, or any authorized person responding to a request for an interview concerning his or her right to counsel."
Healea was arrested Oct. 25, 2014, after reportedly backing his pickup truck, with the tailgate down, into a glass-block window in the back of Addison's Restaurant in downtown Columbia.
Four people inside the restaurant were hurt by the broken glass.
Healea was arrested shortly after the accident.
Farrow's motion argued Healea's basic rights were violated while he was in custody and asked to speak with his attorney.
"The arresting officer attempted to force (Healea) to speak to his attorney in the officer's presence, to which the defendant objected," Farrow wrote. "The arresting officer then allowed the defendant to speak to counsel in a holding cell, in which the officer had the ability to electronically observe the defendant visually and audibly and recorded the entire conversation."
Farrow argued the situation violated the U.S. Constitution's Sixth Amendment guarantee of the accused's right to assistance of counsel for his defense.
But Healea's rights were not violated, Assistant Attorney General Julie Tolle told the court in an eight-page brief.
She noted the arresting officer made contact with Healea near the crash site, smelled alcohol on his breath, and noticed his eyes were glassy and bloodshot.
"(Healea) admitted to driving his vehicle prior to the accident, admitted to leaving the scene and admitted to consuming alcohol," she argued.
Tolle was assigned as the special prosecutor in the case after Boone County Prosecutor Dan Knight recused himself and his office because he and Healea work together as officers of the Missouri Prosecuting Attorneys Association.
She noted Healea refused to take a field sobriety test or a preliminary breath test, and the Columbia officer arrested him.
The police investigation also included surveillance footage from the Boone County National Bank's camera, showing Healea's truck pulling into the parking lot behind the restaurant, crashing into the wall and causing it to collapse, and then leaving the parking lot.
Tolle said Healea called his attorney from a Columbia Police Department booking room, which was under video and audio surveillance. However, she noted, the state wasn't aware it had a copy of the recording and "has never viewed" it.
Also, she wrote, the officer who arrested Healea did not know the phone call had been recorded and never had reviewed it.
So, Tolle argued, that recording played no part in the decisions to seek a grand jury indictment or to pursue a case against Healea.
"Under the Sixth Amendment," she wrote, "a defendant is not guaranteed absolute privacy while making a phone call to his attorney."
She cited a 1995 Missouri Supreme Court ruling, that states "it is essential that officers observe (someone in a booking room) at all times to insure that no material is ingested, or that he does anything which might alter a breathalyzer test."
Farrow countered that 1995 case involved a civil not a criminal situation and "is not only irrelevant, but also completely insufficient in providing this Court with any guiding principles in the present case."
He also noted another Missouri law that makes it a felony when an individual "knowingly intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire communication."
Farrow noted Missouri's law allows that recording only when "one of the parties has agreed to said recording or a warrant has been issued authorizing said recording."
Retired Circuit Judge Hadley E. Grimm, of Macon, has been named a "special master" in the case, to advise Judge Frederick P. Tucker on the Sixth Amendment issues Farrow has raised.
As of Tuesday, Grimm had not set a date for a hearing on those issues.