SUMMARY OF MISSOURI'S CRIMINAL AND ADMINISTRATIVE
DRIVER'S LICENSE SUSPENSION/ REVOCATION LAWS
By
Missouri's Implied Consent Law
In 1964, Missouri passed the state's first "Implied Consent" law. Currently, everyone who operates a motor vehicle within the state 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.
Lawful Stop is Not Required
In February of 1999, the Missouri Supreme Court in Riche v. Director of Revenue, 987 S.W.2d 331 (Mo. 1999) held that the state is not required to prove that the police officer lawfully stopped the motorist in order to suspend or revoke a driver's license under the administrative suspension/revocation laws. The police in this state can now stop anyone they want to, anytime they want to, anywhere they want to, regardless of whether or not they observe the motorist committing any traffic violation whatsoever! Once stopped, if the police determine that there is reasonable grounds to believe you are intoxicated, and arrest you, 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, your license will then be suspended or revoked. Surprising? Yes! Outrageous? Absolutely! This is contrary to the laws in the vast majority of states in the country! In short, the police are free to "troll for drunks in the State of Missouri." Because of this decision, many Missourians have been illegally stopped and arrested, and have lost their drivers licenses (and jobs).
What Constitutes "Reasonable Grounds"
After the police pull you over, they will immediately start to build their case against you by noting certain "indicia" of intoxication, such as the condition of your eyes (watery, glassy, bloodshot) the smell of an alcoholic beverage on your breath, and slurred speech. They 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. They will then subjectively score your performance on those exercises and decide whether to arrest you. In Missouri, bloodshot eyes, coupled with the odor of booze on the breath, has been found by some courts to constitute "reasonable grounds" for purposes of an administrative license suspension! However as we all know, even a single drink consumed recently before driving can cause a "strong" odor of an alcoholic beverage on your breath. Also, in my experience, most people's eyes are normally red or bloodshot due to lack of sleep, allergies, being around cigarette smoke, contact lenses or countless other reasons that have nothing to do with alcohol consumption. At a seminar I spoke at in 1998, I asked 150 attorneys in the room to look at the eyes of the person sitting next to them and to raise their hands if that person had red, watery and/or bloodshot eyes. Nearly every person in the room raised their hands. No one in the room had been drinking.
Field Sobriety Exercises
The National Highway Traffic Safety Administration (NHTSA) has spent millions of your tax dollars in an effort to establish a standardized set of field sobriety "tests" or exercises to assist the police in determining whether or not a driver is under the influence of alcohol. The three tests which they have approved for use are the one leg stand, walk and turn, and horizontal gaze nystagmus tests.
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. E.g., 1001, 1002, 1003, 1004, etc. The police officer must demonstrate the test, ask you if you understand the instructions, and then determine or "score" whether or not you: (1) sway while balancing, (2) use your arms for balance, (3) hop, and (4) put your foot down. These are considered "clues" of impairment. If you score two clues, you "fail the test," and you are likely going to be taken to jail. If you put your foot down three or more times, you fail. The officer must time the test and the test must be terminated at 30 seconds. In order not to distract you, the officer should not be moving around while you are attempting to perform the test. The clue for using arms for balance should not be scored unless you raise your arms more than 6 inches from your sides. Physical contact between your arms and your sides during test is not required. This test must be given on a hard, dry, non-slippery surface, with adequate lighting. This test should not be administered to persons 65 years of age or older, or who are more than 50 pounds overweight. Finally, if the heels on your shoes are more than 2 inches high, your must be given the opportunity to remove them prior to testing.
Walk and Turn Exercise
During the walk and turn exercise, you must be told to stand in the heel-to-toe position with the right foot in front of the left foot, arms down to the sides, to remain in that position, and not to start the test until told to do so. You must then be told to take 9 heel-to-toe steps down a designated line, and when reaching the 9th step, leave your lead foot planted, take a series of small steps around to your left, and return 9 heel-to-toe steps back down the designated line. You must be told to count each step out loud, watch your feet while you are walking, keep your arms down to your sides, and not to 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 before the instructions are completed, (3) stop while walking to steady yourself, (4) don't touch your heel to toe, (5) step off the line, (6) use your arms for balance, (7) lose balance while turning or turn improperly, and (8) take the incorrect number of steps. These are considered "clues" of impairment. If you score two clues, you fail, and are likely going to be taken to jail. Stepping off the designated line three or more times is a fail. As in the one leg stand test, the clue for using arms for balance should not be scored unless you raise your arms more than 6 inches from your sides. Physical contact between your arms and your sides during test is not required. The clue for being "unable to maintain your balance while listening to instructions" cannot be scored unless you step out of the heel-to-toe position while the officer is explaining the test to you. Swaying during the instructional phase is not a clue. The clue for stopping while walking should not be scored unless you stop for "several seconds" in order to maintain your balance. Physical contact between heel-to-toe is not required, and the clue for missing heel-to-toe should not be scored unless you miss by more than ½ inch. In order not to distract you, the officer should not be moving around while you are attempting to perform the test. This test must be given on a hard, dry, non-slippery surface, with adequate lighting. Finally, if the heels on your shoes are more than 2 inches high, your must be given the opportunity to remove them prior to testing. Of course, this can cause further problems if there is debris on the ground where you are performing these exercises.
Horizontal Gaze Nystagmus Test
During the Horizontal Gaze Nystagmus exercise, the police officer must tell you to keep your head still and to follow a stimulus (finger, ink pen, pen light) with your eyes only as the stimulus is passed from side to side in front of your face. The officer must hold the stimulus 12 to 15 inches in front of your nose, with the tip slightly above your eye level. The police officer must first check to see if your eyes track or move together, and if your pupils are of equal size. The officer must then check each eye for three separate clues. The first clue is lack of smooth pursuit. Here, the officer checks to see if each eyeball pursues the stimulus smoothly, or whether the eyeball "jerks" as the stimulus is being moved back and forth in front of your face. The second clue is distinct nystagmus at maximum deviation. Here, the officer is required to move the stimulus out to the right and left, as far as your eyes will go, hold it for at least 4 seconds, and check to see if the eyeballs continuously jerk in that position. The third clue is angle of onset of nystagmus prior to 45 degrees. Here, the officer is supposed to look for the onset of this "jerking" movement prior to each eye reaching an angle of 45 degrees from the center of your nose. A score of four points out of six is failing.
Improper Administration of Field Sobriety Tests
The problem is that police officers in this state have inadequate training, and rarely are the tests 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. For example, most police officers do not know that you do not need to actually touch your heel to your toe on the walk and turn test in order to pass the test. According to NHTSA, a gap of l/2" or less should not be scored as a miss. NHTSA also requires that the suspect walk on a real line or at least parallel to a curb, yet in nearly every case the police tell me they told my client to walk an "imaginary" line. In addition, the arms do not have to touch the side of the body, but can be raised as much as six inches from the side. Finally, critical instructions (e.g., look down at your feet while walking) are frequently left out, causing the test subject to fail the walk and turn test. Shockingly, I have had police officers admit they gave the test on snow and ice and then "failed" my client because they couldn't walk the imaginary line. I had one client tell me that he performed these exercises on a flooded roadway when the client's feet were submerged under 2 inches of water. The same is true with respect to the one leg stand test. Critical instructions are frequently left out, i.e., look down at your foot while performing the test. Failure to give this instruction will almost always result in your failure of the test.
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! Try that now! How about squatting down and trying to hold one leg out in front of you while picking up a pile of coins. I suggest that only an Olympic gymnast could accomplish this. In short, the police in Missouri do not receive adequate or proper training, yet they are using the tests results as a basis to arrest you!
In some states, the police are required to videotape the field sobriety tests, or the results are not admissible in evidence at trial. To keep the police honest, a video camera should be mounted on the dashboard. This is a relatively inexpensive investment, and one which the citizens of Missouri should insist upon. The truly drunk will be more easily convicted. Those whose motor skills are unimpaired will go home. That is the way it should be!
Fortunately, I have been able to convince the Supreme Court of Missouri and the Court of Appeals that a trial court judge should be allowed to disregard a police officer’s testimony concerning the results of improperly administered field sobriety tests when deciding whether or not there was probable cause to arrest the driver for driving while intoxicated, an issue in every administrative hearing, trial de novo and refusal trial. Brown v. Director of Revenue, 85 S.W.3d 1 (Mo. 2002). See also, Paty v. Dir. of Revenue, 168 S.W.3d 625 (Mo. App. E.D. 2005), and York v. Director of Revenue, 186 S.W.3d 267 (Mo. 2006). The applicability of the Brown decision was extended to the improperly administered portable breath tests in the Paty and York cases.
Right to 20 Minutes to Contact an Attorney for Advice
After you are arrested, you will normally be taken to the police station, where you will be asked to take a breath test. In some cities, a blood alcohol testing mobile unit (BATMOBILE) will be dispatched to your location. The police 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!
People constantly ask me whether or not they should take the breath test. The answer is that an attorney cannot and should not give general advice on this subject. The answer will depend upon your specific circumstances at the time. Many attorneys that practice in this area list their home phone numbers. Don't be afraid to call and wake us up!
Right to a Second Test at Your Own Expense
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 a second test done at your own expense. If by some remote chance you know a doctor or a nurse who is willing to come to the police station and take a sample of your blood, the police must allow them to do so. The blood can then be tested at a later time by a toxicologist or at a commercial laboratory to determine alcoholic content. Most motorists do not know anyone who would come to jail and draw their blood, and the legislature has not seen fit to require police officers to transport you to the hospital for a blood test if you request it. If you are released right away, go to the hospital for a blood test if you do not believe your breath test is accurate or if it is real close. The problem we are now running into is that many police departments now have a "12 hour hold" policy on all DWI subjects and refuse to release you to a sober driver so that you can go to the hospital for a blood test. This is the kind of stuff I would expect to see in Nazi Germany, not the US of A! The cards are definitely stacked against you! God help us all!
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 "No 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 are wholly deficient in this area (as they are in every other area) and 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 many instances, the arresting officer conducts the "observation" while he is driving you to jail, and while you are in the back seat of the patrol car. If you are having stomach problems prior to or during the breath test, I strongly urge you to inform the officer of the fact, and insist that he write that down in his arrest report.
The Breath Test
Missouri uses breath analyzer machines to measure the amount of alcohol in a person's system. These machines operate on the principal of absorption of infrared energy. Ethyl alcohol absorbs infrared energy with wavelengths in the 4-micron range. The amount of alcohol present in your breath sample is determined by measuring the amount of infrared energy absorbed by the alcohol molecules in the sample. The suspect's breath sample is captured in a special sample chamber contained within the machine. The volume of the sample chamber is about 50 cc. A source lamp emits infrared energy (invisible light) which passes through the breath sample. A detector is used to determine the amount of infrared energy absorbed. One problem is that numerous other compounds which may be present on the human breath also absorb infrared energy in the same infrared wavelength. The result is that the machine may mistakenly believe that it is measuring alcohol when it is really measuring some other substance. If you happen to be exposed to paint thinners, solvents, or numerous other chemicals on a daily basis, you may go to jail and lose your license whether you are drunk or not.
Another problem involves the fact that the machine is designed to test persons having a 2100/1 blood-breath ratio. Such ratios in fact vary from 1100/1 to 3200/1 and the variance can produce erroneous test results. High readings are produced in 14% of the population. Are you one of those 14%? I hope you don't need your driver's license!
In addition, in most states, "dual testing" has been required by the state legislature or mandated by the courts. Not in Missouri! In Missouri, the only concern is with getting drunk drivers off the road, not with insuring an accurate result. Think about it. When you balance your check book, do you run the numbers once? No. You check them twice to make sure that you, or the calculator, didn't make a mistake. Mandatory dual testing would help eliminate the possibility of random operator and machine error. Even the National Safety Council Committee on Alcohol and Other Drugs has recommended that at least two separate breath samples be collected and analyzed individually. The Committee further recommended that the breath samples be collected at intervals of at least two and not more than ten minutes apart. This process of duplicate analysis is being widely advocated by experts in the field, most notably by Dr. Richard Jensen, one of the nation's leading experts on blood and breath testing. In several states, the courts have struck down the blood and breath testing programs because they did not require dual testing! Demand dual testing in Missouri, or you may be the next victim of an errant test reading!
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. The calibration check is done by pouring a 500 Ml bottle of simulator solution (supposedly containing a known quantity of ethyl alcohol and water) into a simulator jar, heating the solution to a required temperature, and then having the machine measure the amount of alcohol contained in the solution vapor. The procedure is designed to simulate the conditions present when a human subject blows into the machine. It doesn't.
There are a number of problems with this procedure. First, the temperature of the machine itself varies, affecting test results. Second, body temperatures vary, affecting test results. If you have a fever when you take the test, your test results may be increased by as much a 10% or more! 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 regarding the calibration, maintenance and cleaning of the simulator and its component parts.
Fourth, the DOH is approving the purchase and use of simulator solutions from out of state manufacturers and suppliers whose facilities it has never visited or inspected. DOH has not adopted any standards for the manufacture or testing of simulator solutions. DOH does not require the suppliers to furnish scientifically valid supporting documentation attesting to the accuracy of the solution, and Department of Health's own method to test the simulator solution lacks scientific validity. In short, it is a joke!
In the not too distant past, the State of Pennsylvania learned the hard way about not checking out its simulator solution suppliers. Commonwealth v. Brosnick, 530 Pa. 158, 607 A.2d 725, 1992 Pa. LEXIS 290 (1992). In Pennsylvania, it turned out that the simulator solution was being whipped up in the back room of an electronics retail store using vodka and tap water. As a result, the integrity of the entire Breathalyzer program in that state was undermined, numerous people lost their licenses who shouldn't have, and innocent people were sent to jail! While I have no information at this point regarding the accuracy (or lack thereof) of its simulator solutions, the Missouri DOH has approved the purchase and use of simulator solutions from REPCO MARKETING INC. In checking the company's corporate records, it appears that Repco was originally incorporated as "The Leather Bottle," a restaurant and lounge in the State of North Carolina. While the name of the corporation was subsequently changed, the specifically stated purpose and the ownership did not. In addition, this company's charter was forfeited in North Carolina for more than four years, yet it continued to supply simulator solution to the State of Missouri during that time. Concerned? I am!
Finally, testing the machine for accuracy only every 35 days is ridiculous. The machine should be checked for accuracy at the time of every driver’s breath test. In addition, because the police do not keep complete records of repair, the machine you were tested on may well have been found to be out of calibration the day after your test, but neither you or your attorney will ever know about it! Why? I have it from a reliable source that it has been "suggested" to the maintenance officers that they run a "pre-calibration" check before doing the monthly maintenance and fix any problems at that time. Then, when they do their monthly report, everything will be reported as being within calibration. That's O.K., so long as we get the drunk drivers off the highways, right? Wrong! Someone should be shot!
While I agree that drunk drivers are a menace to the public, having something to drink, and then driving, is not illegal. Ask yourself how many times you have gone out to dinner and had only two drinks! Under the current system, you could be convicted when you are innocent! The citizens of this state should demand an investigation into the blood and breath testing programs and demand that the system be changed to insure accurate and reliable testing for alcohol! The DOH has completely abrogated its responsibility to the citizens of this state. The public should demand the immediate resignation of those people in the DOH that are responsible for the pitiful regulations regarding blood and breath testing for alcohol.
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. It is highly recommended that you mail duplicate requests or send the request by certified mail, return receipt requested. Always keep your postage receipt and a copy of your completed request form. I also suggest that you FAX your request for hearing at the same time. 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 a motor vehicle while in an intoxicated condition and whether your blood alcohol content was unlawful. 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.
The hearing is conducted by an employee-attorney of the General Counsel's office of the Director of Revenue, who serves as investigator, prosecutor, judge, and jury, all in one. Normally, the hearing examiner makes his decision based upon the things the police officer wrote down in the arrest report, and the police officer's attendance at the hearing is not required. Many times, the driver will appear at the hearing and testify about what happened. Usually, the hearing is tape recorded by the hearing officer. I always subpoena the arresting officer to appear at the hearing and I have my court reporter there. Police reports rarely tell the whole story.
Unfortunately, many of the hearing officers are completely bias against the driver. Hearing officers should be fair and impartial, should not procure evidence to support the director’s case, should not attempt to elicit foundational testimony from the arresting officer through leading questions, and should rule on and sustain valid objections. As a result, it is difficult to win your case at the administrative hearing level. One retired hearing examiner even told me that he had been orally reprimanded by his supervisors for ruling in favor of the driver. Surprised? You shouldn't be. If your weekly paycheck came from one of the parties to a lawsuit, who would you rule for?
The problem is that once the administrative hearing officer rules against you, your license suspension or revocation will go into effect. While you have the right to file an appeal of the decision to the circuit court in the county of your arrest, and to have a trial before a fair and impartial judge, 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. Think this is fair? Is this the American system of justice or the return of the Spanish Inquisition? I hope that you don't depend upon your driver's license to earn a living.
Trial De Novo
In order to contest the decision of the hearing examiner, you must file an appeal in the circuit court of your arrest within 15 days of the date the hearing examiner mailed the decision to you. At the trial de novo, the Director of Revenue will be represented by an attorney who works in the General Counsel's office. (Yes, the same office where the hearing examiner works). The issues are the same as in the administrative hearing, and the Director has the burden of proof. Most of the time, the Director will subpoena the police officer that arrested you, and he or she will be the first witness to testify. The driver's attorney then has the opportunity to cross examine the arresting officer under oath, so that important issues can be reviewed before the criminal case (DWI) is dealt with. The director will then offer your breath test result into evidence, either through the officer who gave you the test, or by offering certified copies of the records into evidence under one of two statutory provisions. The driver then has the opportunity to testify and to call witnesses to testify on his or her behalf. You should always consult with an attorney before giving testimony in either the administrative hearing or trial de novo.
Length of Suspension or Revocation for Testing Over the Legal 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.
Consequences for Refusing the Breath or Blood Test
After you have been arrested, the officer must advise you that: (a) your refusal to submit to a test may be used against you in a criminal prosecution; and (b) that 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.
As is the case with a trial de novo, the arresting officer may appear in person and testify against you. The issues are whether or not there was probable cause to believe your were operating a motor vehicle while in an intoxicated condition; whether you were arrested; and whether you were informed of your Implied Consent warnings and then refused to take the breath or blood test. Again, the Director has the burden of proof on all issues.
There are a number of problems in this area. First, sometimes the Implied Consent warnings are not read by the police to the suspect, though they may subsequently swear under oath that they did so. This problem could be greatly reduced by requiring that the suspect be read and sign the Implied Consent warnings or by video taping the giving of the Implied Consent warnings and the breath testing procedure. Nearly every department in the state presently has the equipment to videotape the testing procedures inside the jail, but choose not to do so. Again, the use of video cameras would greatly increase the likelihood of a conviction and reduce the possibility of police abuse.
Second, people with asthma or low lung capacity may have great difficulty providing an adequate breath sample to the breath analyzer machine. When no reading is forthcoming, the police may mistakenly or intentionally blame this on you and consider this a refusal. This problem could be reduced or eliminated if the state would purchase the new machines which measure and record breath pressure. Also, certain contaminates on the breath may cause an invalid sample, which again, the breath test operator may blame on you. A videotape would be helpful in these cases as well.
Finally, a sober driver who has been pulled over by a cop out trolling for drunks, and who has been arrested because he has beer on his breath, red eyes, and couldn't recite the alphabet backwards, is going to be indignant about the arrest and not trust the cop to fairly administer the breath test. In that case, there is likely to be a refusal. Unfortunately, I have seen this happen on more than one occasion.
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 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. Again, you should call an attorney for advice in your particular case.
5 and 10 Year License Denials
Any person who receives two convictions for driving while intoxicated in a five-year period will have their license revoked 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 revoked and they are not eligible for the return of the license for a minimum of 10 years. On 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, etc. On a ten-year denial, the driver may apply for a hardship privilege after three years, with the same exceptions as above.
Points for Alcohol-Related Traffic Convictions
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 have prior convictions. Any felony conviction resulting from the use of a motor vehicle (manslaughter, vehicular assault) will result in the imposition of 12 penalty points. 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 felony conviction arising out of the operation of the motor vehicle or for a second conviction for a DWI or BAC.
Criminal Penalties for DWI and Related Offenses
NEW LAW EFFECTIVE AUGUST OF 2005
A first violation of law for driving while intoxicated ("DWI"), or for operating a motor vehicle with excessive blood alcohol content ("BAC"), is a class B misdemeanor, and is punishable by up to 6 months in the county jail, a $500.00 fine, or both. (Same as old law)
A second violation of law for DWI or BAC within five years of the first violation is a class A misdemeanor and is punishable by up to 1 year in jail, a $1,000 fine, or both. (Same as old law)
A third violation of law for either DWI or BAC (within your lifetime) is a class D felony and is punishable by up to 4 years in prison, a $5,000 fine, or both. (Old law required that first violation occurred within 10 years of the 3rd offense)
A fourth violation of law for either DWI or BAC (within your lifetime) is a class C felony and is punishable by up to 7 years in prison, a $5,000 fine, or both. (This person is now classified as an "aggravated offender" under the new law)
A fifth or subsequent violation of law for either DWI or BAC (within your lifetime) is a class B felony and is punishable by a term of years of not less than five years, and up to 15 years in prison. (This person is now classified as a "Chronic Offender" under the new law)
6. Felony assault with a motor vehicle (while in an intoxicated condition or under the
influence of controlled substances or drugs, operating a motor vehicle with criminal negligence so as to cause physical injury to any other person) is a class C felony and carries a range of punishment of up to 7 years in prison, a $5,000 fine or both. (Same as old law)
7. If you are arrested for a new DWI or BAC, you may be charged as an "Aggravated Offender," and may be punished by up to 7 years in prison, a $5,000 fine, or both, if:
*This is at least your 4th violation of the law for DWI or BAC; or
*You have previously plead guilty to, or been found guilty of, involuntary manslaughter (whether or not it involved operation of a motor vehicle while you were DWI or BAC); or
*You have previously plead guilty to, or been found guilty of, felony assault with a motor vehicle (while in an intoxicated condition or under the influence of controlled substances or drugs, operating a motor vehicle with criminal negligence so as to cause physical injury to any other person); or
*You have previously plead guilty to, or been found guilty of, murder in the second degree which involved the operation of a motor vehicle while DWI or BAC; or
*You have previously plead guilty to, or been found guilty of, assaulting a law enforcement officer in the second degree which involved the operation of a motor vehicle while you were DWI or BAC.
8. If you are arrested for a new DWI or BAC, you may be charged as an "Chronic offender," and may be punished by a term of years of not less than five years, and up to 15 years in prison, if:
*You have previously pleaded guilty to, or been found guilty of, four or more charges of DWI or BAC; or
*You have previously plead guilty to, or been found guilty of, the following offenses, on two or more separate occasions: involuntary manslaughter (whether or not it involved operation of a motor vehicle while you were DWI or BAC); felony assault with a motor vehicle (while in an intoxicated condition or under the influence of controlled substances or drugs, operating a motor vehicle with criminal negligence so as to cause physical injury to any other person); and/or assaulting a law enforcement officer in the second degree which involved the operation of a motor vehicle while you were DWI or BAC; or
*You have previously plead guilty to, or been found guilty of, involuntary manslaughter (whether or not it involved operation of a motor vehicle while you were DWI or BAC); felony assault with a motor vehicle (while in an intoxicated condition or under the influence of controlled substances or drugs, operating a motor vehicle with criminal negligence so as to cause physical injury to any other person); or assaulting a law enforcement officer in the second degree which involved the operation of a motor vehicle while you were DWI or BAC, and you have had two other prior DWI or BAC offenses.
9. Involuntary manslaughter
RSMo. 565.024 provides that.
1. A person commits the crime of involuntary manslaughter in the first degree if he or she:
(1) Recklessly causes the death of another person; or
(2) While in an intoxicated condition operates a motor vehicle in this state and, when so operating, acts with criminal negligence to cause the death of any person; or
(3) While in an intoxicated condition operates a motor vehicle in this state, and, when so operating, acts with criminal negligence to:
(a) Cause the death of any person not a passenger in the vehicle operated by the defendant, including the death of an individual that results from the defendant's vehicle leaving a highway, as defined by section 301.010, RSMo, or the highway's right-of-way; or
(b) Cause the death of two or more persons; or
(c) Cause the death of any person while he or she has a blood alcohol content of at least eighteen-hundredths of one percent by weight of alcohol in such person's blood.
2. Involuntary manslaughter in the first degree under subdivision (1) or (2) of subsection 1 of this section is a class C felony. Involuntary manslaughter in the first degree under subdivision (3) of subsection 1 of this section is a class B felony. A second or subsequent violation of subdivision (3) of subsection 1 of this section is a class A felony. For any violation of subdivision (3) of subsection 1 of this section, the minimum prison term which the defendant must serve shall be eighty-five percent of his or her sentence.
3. A person commits the crime of involuntary manslaughter in the second degree if he acts with criminal negligence to cause the death of any person.
4. Involuntary manslaughter in the second degree is a class D felony.
Under Age Drivers
577.500.
1. A court of competent jurisdiction shall, upon a plea of guilty, conviction or finding of guilt, or, if the court is a juvenile court, upon a finding of fact that the offense was committed by a juvenile, enter an order suspending or revoking the driving privileges of any person determined to have committed one of the following offenses and who, at the time said offense was committed, was under twenty-one years of age:
(1) Any alcohol-related traffic offense in violation of state law or a county or municipal ordinance, where the defendant was represented by or waived the right to an attorney in writing;
(2) Any offense in violation of state law or county or municipal ordinance, where the defendant was represented by or waived the right to an attorney in writing, involving the possession or use of alcohol, committed while operating a motor vehicle;
(3) Any offense involving the possession or use of a controlled substance as defined in chapter 195, RSMo, in violation of the state law or a county or municipal ordinance, where the defendant was represented by or waived the right to an attorney in writing;
(4) Any offense involving the alteration, modification or misrepresentation of a license to operate a motor vehicle in violation of section 311.328, RSMo;
(5) Any offense in violation of state law or a county or municipal ordinance, where the defendant was represented by or waived the right to an attorney in writing, involving the possession or use of alcohol for a second time; except that a determination of guilt or its equivalent shall have been made for the first offense and both offenses shall have been committed by the person when the person was under eighteen years of age.
2. The court shall require the surrender to it of any license to operate a motor vehicle then held by any person against whom a court has entered an order suspending or revoking driving privileges under subsections 1 of this section.
3. The court, if other than a juvenile court, shall forward to the director of revenue the order of suspension or revocation of driving privileges and any licenses acquired under subsection 2 of this section.
4. (1) The court, if a juvenile court, shall forward to the director of revenue the order of suspension or revocation of driving privileges and any licenses, temporary instruction permits, intermediate driver's licenses, or any other driving privilege acquired under subsection 3 of this section for any person sixteen years of age or older, the provision of chapter 211, RSMo, to the contrary notwithstanding.
(2) The court, if a juvenile court, shall hold the order of suspension or revocation of driving privileges for any person less than sixteen years of age until thirty days before the person's sixteenth birthday, at which time the juvenile court shall forward to the director of revenue the order of suspension or revocation of driving privileges, the provision of chapter 211, RSMo, to the contrary notwithstanding.
5. The period of suspension for a first offense under subsection 1 of this section shall be ninety days. Any second or subsequent offense under subsection 1 of this section shall result in revocation of the offender's driving privileges for one year. The period of suspension for a first offense under subsection 2 of this section shall be thirty days. The period of suspension for a second offense under subsection 2 of this section shall be ninety days. Any third or subsequent offense under subsection 2 of this section shall result in revocation of the offender's driving privileges for one year.
Mandatory Education and Counseling Programs
As a condition of probation in any 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 drivers license after an administrative DWI suspension or revocation, or a point suspension or revocation resulting from a alcohol-related traffic conviction. The program consists of three levels, the first being an offender education class or program (OEP). This program is generally reserved for first time offenders whose BAC reading was .17 or less. The cost of this program is approximately $375.00, consists of 10 hours of education conducted in a classroom setting, and can be completed on a weekend or during two or three evenings.
The second level program is called the Weekend Intervention Program (WIP). In this program, the driver spends 48 consecutive hours in a restrictive environment during which time the offender is involved in approximately thirty hours of intensive alcohol educational intervention. The cost of this program is about $575.00. Persons with drinking problems, one prior offense, or whose BAC readings are in excess of .17, are most likely to have to complete the WIP.
Finally, the third level is called the Clinical Intervention Program (CIP) and involves approximately 50 hours of outpatient treatment and counseling with a licensed professional. The cost of this program is around $800.00, and will take a period of several weeks to complete. The program includes both individual and group education and counseling. Persons with drinking problems, two prior offenses, or with very high BAC readings (.20 or above) are most likely to have to complete the CIP.
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 an SR-22 filing (proof of insurance) with the Department of Revenue for a period of two years from the effective date of the suspension. This form must be completed by your automobile insurance company. Some companies will not make this filing, and will cancel your car insurance upon learning of your suspension or revocation.
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. 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. The cost of installation ranges from $50 to $100, and you will have to pay $50 to $75 per month for the privilege of having the device on your car. If your probation period is two years, this will result in substantial costs to you.
Some Parting Observations
Ten years from now, I am convinced that scholars will look back at this time in our history and conclude that the turning point for the erosion of our constitutional rights began with DWI and drug cases. Drugs and drunk driving are big problems, and nobody, including me, would condone them. I, 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 my clients are 100 lb. women, who by drinking two glasses of wine will raise their blood alcohol level to at or 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 me 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 an attorney, and as an American, I will do everything within my power to defend the Constitution from the oppression of the masses. With my last dying breath, I 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 will be the 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)
Wake up Missouri, before it's too late!
