The Firm

Missouri DWI Laws

Criminal Law vs. Administrative Law

Every DWI case inevitably involves two very important, yet distinct cases against the driver. The first involves criminal prosecution, and the second involves an administrative action against the motorist’s driver’s license.

In the criminal case, the motorist is referred to as the “defendant,” and the city or county prosecutor is seeking to punish (through fines, jail, probation, etc.) the defendant. The prosecutor will typically bring one of two charges against the defendant. The first type of charge a prosecutor could bring against a defendant is a driving while intoxicated (“DWI”) charge for operating a motor vehicle while under the influence of alcohol or drugs. To be convicted for driving while intoxicated, the prosecutor must prove beyond a reasonable doubt that the defendant was operating a motor vehicle while under the influence of alcohol or drugs.

Despite the common misconception, there is no requirement in Missouri that the defendant be “over the legal limit” to be convicted of DWI. The defendant need only be “under the influence,” which, depending on the person, could occur at a blood alcohol content (“BAC”) lower than .08 or could occur as the result of drugs. This brings us to the second type of charge a prosecutor could bring against a defendant, a BAC charge.

Under a BAC charge, the prosecutor must prove beyond a reasonable doubt that the defendant was operating a motor vehicle with a BAC of .08 or higher. Here, it is irrelevant whether or not the defendant was “under the influence.” Instead, the only issue is whether the defendant was operating the motor vehicle with an impermissible BAC.

The second distinct case is the case against the motorist’s driver’s license (also known as the “administrative” or “admin” case). The administrative case can take one of two forms depending on whether or not the driver provided a chemical sample.

If a driver refused to take a chemical test in violation of Missouri’s Implied Consent Laws (See “Missouri Implied Consent Laws” below for more information), the driver’s license may be revoked for one year. To challenge the revocation, the driver must file what is known as a “Petition for Review” with the state court in the county where the arrest took place. A traffic court commissioner or judge will hear the driver’s case. Unless the Petition for Review is filed within 15 days of receipt of a Notice of Revocation (normally given to the driver by the officer at the time of the driver’s arrest), the driver’s license revocation will go into effect. If the Petition for Review is not filed within 30 days of receipt of the Notice of Revocation, the ability of the driver to challenge the refusal will be permanently lost, and the driver must serve the one year revocation of his or her driving privileges.

If the driver provided a chemical sample, the driver or his or her attorney must request, through the Department of Revenue, an administrative hearing. At an administrative hearing, the case will initially be heard by a hearing officer employed by the Department of Revenue. If the hearing officer decides that there was not probable cause to arrest the driver for driving while intoxicated or the chemical test did not show that you had a BAC of .08 of higher at the time the vehicle was being operated, the driver will receive his or her license back, and no further action is necessary. If, on the other hand, the hearing officer decides to uphold the license suspension, the driver may file a Petition for “Trial De Novo” in front of a state court judge in the county of arrest. It will then be up to the traffic court commissioner or judge to decide if the license suspension should be upheld.

When you are reading through this “Missouri DWI Laws” section, it is important to keep in mind the two separate cases. Some laws apply to just the driver’s license case, some laws apply just to the criminal case, and some laws apply to both. As applicable, the following sections will clearly indicate which case the specific laws apply to and what, if any, impact the laws have on the other case.

Missouri Implied Consent Laws

In 1964, Missouri passed the state’s first “Implied Consent” law. Currently, everyone who operates a motor vehicle in Missouri impliedly consents to giving a blood, breath, saliva or urine sample to determine the alcohol content of their blood if arrested upon reasonable grounds to believe they were driving a motor vehicle while in an intoxicated or drugged condition. Under the law, the police may require you to take two tests, but rarely do so.

If you refuse to submit to a chemical test, or refuse to cooperate in providing a chemical sample, you may lose your license for a year. In order to revoke your license for refusing a test, the Director must prove (by a preponderance of the evidence) the following elements:

  1. There were reasonable grounds (i.e., “probable cause”) to believe you were operating a motor vehicle while in an intoxicated condition;
  2. You were arrested;
  3. You were informed of your Implied Consent warnings; and
  4. You refused to take the chemical test.

The Department of Revenue has the burden of proof on all issues. A skilled DWI defense attorney like Mr. Ward knows how to challenge the Department of Revenue on each of these elements to give you the best chance at keeping your driver’s license.

In addition to the impact refusing to submit to a chemical test can have on your administrative case, it can also be used against you in your criminal case. In other words, Missouri’s Implied Consent Law allows the prosecutor to tell the judge or jury that you refused to submit to a chemical test. It is then up to the judge or jury to decide the relevance or significance of your refusal to take a test. A skilled DWI defense attorney knows the best ways to reduce the impact of your refusal in front of a judge or jury.

Lawful Stop Not Required for License Suspension or Revocation

Riche v. Director of Revenue, 987 S.W.2d 331(Mo.1999) 

In Riche, the Missouri Supreme Court held that the Department of Revenue is not required to prove that the police officer lawfully stopped the motorist in order to suspend or revoke a driver’s license following an arrest for DWI.

That means that the police in Missouri can stop a motorist for any reason, no reason, or a bad reason. After the stop, if the officer develops probable cause to believe you are driving while intoxicated, and places you under arrest, you must submit to a chemical test to determine the alcohol content of your blood. If you test over the legal limit (.08%) or refuse the test, the Government can try to suspend or revoke your license. In other words, the exclusionary rule does not apply to Department of Revenue license suspension cases.

Keep in mind, however, that proof of a valid stop is still required, although the United States Supreme Court has continued to chip away at the exclusionary rule. In the DWI case, failure to validly stop a motorist will generally render any subsequently obtained evidence inadmissible (i.e. confessions, chemical tests, field sobriety tests, officer observations, etc.). Mr. Ward will carefully evaluate the facts of your case and consider whether a Motion to Suppress illegally obtained evidence should be filed.

What Constitutes “Reasonable Grounds” or “Probable Cause” for arrest? After the police pull you over, they will immediately start to build their case against you by noting certain signs of alcohol consumption and alcohol intoxication. The officer will look at factors such as the condition of your eyes (watery, glassy, bloodshot, etc.), the smell of an alcoholic beverage on your breath, and slurred speech. The officer will normally ask you if you have been drinking, and will then ask you to step out of your vehicle to perform several field sobriety exercises. The officer will observe the manner in which you walk and stand during his or her contact with you. The officer will take into account your performance on the field sobriety exercises, as well as his or her other observations, and decide whether to arrest you for a DWI.

The hearing officer, traffic court commissioner or judge will then review the totality of all the evidence known by the officer at the time of your arrest to determine if probable existed to believe that you were driving while intoxicated. There is a vast number of appellate court cases on what constitutes probable cause for arrest in a DWI case. Mr. Ward has extensive appellate experience and is very familiar with those cases.

Field Sobriety Exercises

The National Highway Traffic Safety Administration (NHTSA) has established a standardized set of field sobriety “tests” or exercises to assist the police in determining whether or not you are driving under the influence of alcohol (DUI). The three standardized tests which are usually administered in Missouri are the horizontal gaze nystagmus (HGN), one leg stand and walk and turn tests.

Horizontal Gaze Nystagmus

During the Horizontal Gaze Nystagmus (HGN) test, the police officer must tell you to keep your head still and to follow a stimulus (finger, ink pen or pen light) with your eyes only as the stimulus is passed from side to side in front of your face. You should be told to remove your glasses before taking the test. The officer must hold the stimulus 12 to 15 inches in front of your nose throughout the test, with the tip slightly above your eye level.

The officer is first supposed to check your eyes for possible medical impairment. At the beginning of the test, the officer must check to make sure your pupils are of equal size and look for resting nystagmus (jerking of the eyes when the eyes are stationary). Finally, your eyes must be checked to make sure they track (move) equally (together).

The officer must then check for three (3) clues in each eye: lack of smooth pursuit, distinct and sustained nystagmus at maximum deviation, and onset of nystagmus prior to 45 degrees. These clues are used to score the test.

Finally, the officer checks for vertical nystagmus (jerking of the eyes up and down) when your eyes are looking up. NOTE: There are specific time requirements for moving and holding the stimulus during this test. A properly administered test will take over one (1) minute.

According to NHTSA research, if a suspect exhibits four or more clues (there are six total), there is about a 77% chance that the suspect’s BAC is over .10.

One Leg Stand Exercise

A second test used to help the police determine if you have been driving while intoxicated is the one leg stand exercise. During the one leg stand exercise, you must be told to hold the foot of your choice approximately 6 inches off the ground in front of you, point your toe forward, keep both legs straight, keep your arms down to your sides, watch your raised foot, and to count out loud by thousands until told to stop. The officer should tell you to pick your foot up if you put it down and resume counting where you left off. The officer must terminate the test after 30 seconds. The four clues the officer is looking for on this test are: (1) swaying while balancing, (2) using your arms for balance, (3) hopping, and (4) putting your foot down. According to NHTSA research, if a suspect exhibits two or more clues (there are four total), there is a 65% chance that the suspect’s BAC is over .10.

Walk and Turn Exercise

The third standardized field sobriety test is the walk and turn exercise. During the walk and turn exercise, you must initially be told to stand with your right foot in front of your left foot, touching heel-to-toe, arms down to your sides, to remain in that position, and not to start the test until told to do so. This is called the instructional position.

You must then be told to take nine (9) heel-to-toe steps up a designated line, and when reaching the ninth step, leave your lead foot planted, take a series of small steps around to your left with your other foot, and then take nine (9) heel-to-toe steps back down the designated line. You must then be told to: count each step out loud, watch your feet while you are walking, keep your arms down to your sides, and don’t stop walking until the test is completed. The police officer must demonstrate the test, ask you if you understand the instructions, and then score you on whether or not you:

  1. are unable to maintain your balance while listening to instructions,
  2. start the test before the instructions are completed,
  3. stop while walking to steady yourself,
  4. don’t touch heel-to-toe,
  5. step off the designated line,
  6. use your arms for balance,
  7. lose your balance while turning or turn improperly, and
  8. take the incorrect number of steps.

According to NHTSA research, if a suspect exhibits two or more clues (there are eight total), there is a 68% chance that the suspect’s BAC is over .10.

Portable Breath Test at Roadside

You may also be given a portable breath test at roadside to determine the presence of alcohol on your breath. There are a number of types of such devices in use in the State of Missouri. These include … As a general rule, the operator’s manuals for most PBT devices call for calibration checks every 30 days, and a 15-20 deprivation period (no drinking, eating or smoking) prior to the administration of the PBT test. In reality, most police departments do not have any sort of routine maintenance program for their PBT devices, and in many cases, the officers do not wait a sufficient amount of time at roadside before administering the PBT test to a suspect.

Improper Administration of Field Sobriety Tests

Many times, police officers have inadequate training, and the field sobriety tests are not properly administered. The average police officer learned about the exercises/tests at the police academy, and has had no training since that time. The result is that the required testing conditions and scoring procedures are never learned, or they are forgotten or modified.

Police officers have also been known to create their own tests, such as having the subject recite the alphabet backwards, starting from the letter M, and then fail the subject because he or she could not do so. Having to recite the alphabet backwards is not a recognized field sobriety test in Missouri or anywhere else.

The research conducted by NHTSA attributing a likelihood of impairment assumed that the police officer properly administered, interpreted and scored the standardized field sobriety tests. If the officer does not properly administer the tests, NHTSA states that their “validity is compromised.” In such case, they should not have been relied on.

Right to Contact an Attorney for Advice

After you are arrested for a DWI, you will normally be taken to the police station, where you will be asked to take a breath test. In some cases, a blood alcohol testing mobile unit (“BATMOBILE”) may be dispatched to your location, or may be stationed at a sobriety checkpoint. Prior to administering the test, the police officer must inform you of the consequences of refusing the test, and if you request it, you must be allowed 20 minutes in which to contact an attorney for advice. You must ask! Know your rights!

Right to a Second Test

If you take a breath test at the request of a police officer, and you are unhappy with the test results, under state law, you have the right to an independent test at your own expense. If you are released right away, go to the hospital for a blood test if you do not believe your breath test is accurate. I.e., if you don’t feel drunk, go get a test.

The problem we are now running into is that many police departments have a “12 hour hold” policy on all DWI subjects, and refuse to even release the suspect to a sober driver so that he or she may go to the hospital for a blood test. If this happens, complain about it to as many people as possible, and demand that the officer write it down in his or her report. This type of interference with your right to obtain an independent test could result in the exclusion of the state’s test result from evidence or even the dismissal of the charges against you.

15 Minute Observation Period

Missouri’s regulations on blood and breath testing provide that the subject must be “observed for at least 15 minutes” before the breath test. The only guidance the regulations provide is that there may be “[n]o smoking or oral intake of any material during this time; if vomiting occurs, start over with the 15 minute observation period.”

The purpose of an observation period is to make sure that you do not do something that could contaminate the breath sample. Missouri’s regulations do not require the police to watch you carefully to make sure that you do not regurgitate, belch, or burp up alcohol from your stomach, all of which can adversely affect the breath test result. In fact, the Supreme Court of Missouri has pretty much shifted the burden to the driver to present evidence that he or she did something during the 15 minute period immediately preceding the breath test that adversely affected your breath test result. If you burped, belched, or regurgitated, it is important to tell your DWI attorney about it.

The Breath Test

To conduct the breath test, Missouri uses breath analyzer machines to measure the amount of alcohol in a person’s system. One problem is that numerous other compounds which may be present on the human breath also may make the machine mistakenly believe that it is measuring alcohol when it is really measuring some other substance. Carl’s associate, has written an excellent paper entitled “The Fallibility of Breath Testing Devices” which covers many of the problems related to breath testing devices.

Under the current Missouri Department of Health (“DOH”) regulations, the police only need to do a calibration or accuracy check of the breath test machine every 35 days. There are a number of problems with Missouri’s calibration procedure. First, the temperature of the machine itself varies, affecting test results. Second, body temperatures vary, affecting test results. Third, even though the manufacturers acknowledge that the “most critical link in the simulation process is the simulator,” the Missouri Department of Health hasn’t bothered to adopt any regulations requiring the calibration, maintenance and cleaning of the simulator and its component parts.

Administrative Hearings

If you take a breath test and your test result is .08% or above (.02 if you are under 21), the police officer will take your driver’s license and give you a temporary license and a hearing request form. The hearing request form must be completed, mailed and postmarked within 15 days of your arrest.

After your hearing request is received, you will then be notified of the date, time and location of your hearing. The sole issues at the hearing will be whether there was probable cause to believe you were driving while intoxicated and whether your blood alcohol content exceeded the legal limit. If you are a minor, and your blood alcohol content was below .08%, the lawfulness of your initial stop will be an issue in the case as well.

If the administrative hearing officer rules against you, your license suspension or revocation will go into effect 15 days after the hearing officer’s decision is mailed to you. While you have the right to file an appeal of the decision to the Circuit Court in the county of your arrest, the legislature has prohibited the courts from staying the suspension or revocation pending the outcome of that trial. Normally, you will have already served all or part of your suspension before your case gets to trial.

Trial De Novo

To contest the decision of the administrative hearing officer, you must file an appeal in the Circuit Court of your arrest within 15 days of the date the hearing examiner mailed his decision to you. The issues are the same as in the administrative hearing, and the Director has the burden of proof. You should always consult with an attorney before giving testimony in either the administrative hearing or trial de novo. Any statements you make during the hearing or trial de novo could be used against you during the trial of your DWI case.

Length of Suspension or Revocation for Testing Over the Limit

If you have not had any previous alcohol-related convictions or suspensions in the five year period preceding your current arrest, the suspension period will be 30 days, during which you are not allowed to drive at all, followed by a 60 day period when you may drive only in connection with your occupation or employment.

If you have a previous DWI or BAC conviction, administrative alcohol suspension or chemical refusal on your driving record within the past five years, the revocation period will be for one year, and you will not be eligible for a hardship privilege (i.e., a period of driving only for your occupation or employment).

Consequences for Refusing the Breath or Blood Test

After you have been arrested, the officer advise you of the Implied Consent warnings. Those include the following:

  1. You are under arrest for DWI;
  2. The reason for requesting the test;
  3. Your refusal to take a test may be used against you in a criminal prosecution;
  4. Your license will be immediately revoked for one year if you refuse.

If you then refuse the test, the officer will serve you with a refusal notice. You then have 30 days from the date of your arrest to file a petition for review in the Circuit Court of the county of your arrest, although the revocation will go into effect after 15 days unless otherwise stayed. The Circuit Court can and normally will grant a stay order pending a trial before a traffic court commissioner or judge in a refusal case, depending on your driving history.

If you have not previously refused a breath test, and you are otherwise eligible, you may be able to obtain a hardship driving privilege to drive in connection with your employment, school, and to a Substance Abuse Traffic Offender Program (“SATOP”) after you have served the first 90 days of your revocation. This is true even if you have had a previous alcohol conviction or administrative suspension within the previous five years.

In other words, if this is your second arrest within five years, and you have a previous administrative suspension or alcohol conviction (but not a refusal) on your record, if you take the test and fail, you will be revoked for a year and you will not be eligible for a hardship driving privilege. If you refuse the test, you will be revoked for a year but you may be eligible for a hardship privilege after 90 days.

Five (5) and Ten (10) Year License Denials

Any person who receives two convictions for driving while intoxicated within a five-year period will have their license denied, and they are not eligible for reinstatement for a period of five years. Any person who receives three or more convictions for any combination of DWI or BAC (operating a motor vehicle with a blood alcohol content of .08% or more) within a life time will have their license denied, and they are not eligible for reinstatement for a minimum of 10 years.

For a five-year denial, the driver may apply for a hardship privilege after two years, provided that neither of the convictions were felonies, and provided that the driver is not otherwise ineligible because of having twice refused the breath or blood test. Other restrictions may apply. For a ten-year denial, the driver may apply for a hardship privilege after three years, with the same exceptions as above. There are Bills pending in the current legislative session that may expand the ability of a driver to obtain a hardship license, so stay tuned for more information.

Points for Alcohol-Related Traffic Convictions

In Missouri, a conviction for a DWI or BAC will result in the imposition of 8 penalty points on your driver’s license if you haven’t had any previous alcohol-related convictions and 12 points if you do.

A 30-day suspension followed by a 60-day period of restricted driving privileges will result from a first DWI or BAC conviction. A one-year revocation will result from a second conviction for a DWI or BAC, and a five year denial will be imposed following a conviction for vehicular manslaughter.

Mandatory Education and Counseling Programs

As a condition of probation in any Missouri DWI or BAC case, the judge is required to order the driver to complete the Substance Abuse Traffic Offender Program (SATOP). The driver is also required under state law to complete the program as a condition of the return or issuance of a driver’s license after an administrative DWI suspension or chemical revocation, or a point suspension or revocation resulting from an alcohol-related traffic conviction. The program now consists of four levels. The first level is the offender education class or program (OEP) which is generally reserved for first time offenders whose BAC reading was .17 or less. The second level is the Weekend Intervention Program (WIP) which is for persons with drinking problems, one prior offense, or whose BAC readings are in excess of .17. The third level is the Clinical Intervention Program (CIP) which is for persons with serious drinking problems, two prior offenses, or with very high BAC readings. Finally, the fourth level is CIP Plus, which includes additional counseling and treatment requirements above and beyond the normal CIP program. For more information on SATOP, go to the website for Eastern Missouri Alternative Sentencing Services (“EMASS”).

Insurance (SR-22) Requirements

In order to reinstate your license after an administrative DWI suspension or revocation, or a point suspension or revocation resulting from a alcohol-related traffic conviction, the offender is required to maintain a proof of insurance with the Department of Revenue for a period of two years from the effective date of the suspension.

Vehicle Ignition Interlock Devices

If you plead guilty to or are found guilty of a first offense DWI or BAC, the court may order you to install an ignition interlock on your car as a condition of probation. You must blow into this device to start your car, and periodically while driving. If the device detects alcohol on your breath, the car will not start, a record of that fact will be made, and the judge will be notified. In Missouri, if you plead guilty to or are found guilty of a second or subsequent DWI or BAC, the judge must order you to install the device on your vehicle. Changes in the law relating to the use of interlock devices are coming soon.

Parting Observations

We are convinced that scholars will one day look back at this time in our history and conclude that the turning point for the demise of our 4th Amendment rights began with DWI and drug cases. Drugs and drunk driving are big problems, and nobody, including us, condones them. We, too, have lost close friends and relatives in drunk driving accidents and to drugs.

What we can’t do is overreact to these problems. We cannot trade our basic civil liberties for public security. There is a line that cannot be crossed, but we have now crossed it. As a result of the hysteria and the public outcry, we have bastardized long-standing rules of evidence, good science, and the Bill of Rights in exchange for the expedient removal of drunk drivers from the highways.

Yet, we do nothing to educate the public about how alcohol may affect their ability to operate a motor vehicle before they come to the lawyer’s office with their first DWI. Many times, they just didn’t know how much alcohol they could drink given their body weight. Many of our clients are 100 lb. women, who by drinking two glasses of wine will raise their blood alcohol level above the legal limit. Many are young people, who are inexperienced drinkers. Most are just people who don’t know how many is too many. They tell us if they had known, they wouldn’t have had that last beer, that “one for the road.” Has anyone ever thought to include alcohol education in the high school curriculum? Has anyone thought to include an alcohol consumption chart in the state’s driver’s license manual so that people will at least have an idea how much they can and can’t drink? Some states have. Why is Missouri always last? Don’t Drive Drunk commercials are great, but how does one know how much he or she can drink?

As attorneys, and as Americans, we will do everything within our power to defend the Constitution from the oppression of the masses. With our last dying breath, we will fight the Department of Health’s “junk science,” the legislature’s Draconian rules of evidence, and the attempts of judges to take away our civil liberties. We have the scientific means, but not the will, to improve a system where the innocent may be convicted, and the guilty can go free. Yes, this is a turning point for the Bill of Rights. As a wise judge once so eloquently said:

“Carnage on the highways, and all other crimes, are subservient to the carnage at Valley Forge, Yorktown, and Gettysburg, where the civil liberties now hanging in the balance were carefully shaped and hammered into rights so clean and so pure that they stand the test of time and resist encroachment.” Hon. Jim Randall, McDonnell v. Com’r of Public Safety, 460 N.W.2d 363 (Minn. App. 1991).

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