Smuda & Ramirez, P.C. handles DWI and traffic cases in Missouri. A person is not guilty of Driving While Intoxicated (DWI) just because he or she is charged with the offense. These cases are unique in the criminal justice system and require skilled, experienced and knowledgeable counsel.
A charge of DWI can have serious ramifications on a defendant's driver's license, criminal record, immigration status, and ability to function in society. The right attorney can make a difference.
Missouri's Implied Consent Law:
Missouri passed the "Implied Consent" law in 1964. Anyone who operates a motor vehicle in Missouri consents to giving a blood, breath, saliva or urine sample to determine the alcohol content of their blood (by virtue of driving the vehicle) if, upon reasonable grounds, the police believe the driver is operating the motor vehicle while intoxicated or in a drugged condition. Under the law, the suspect may be required to take two tests.
Reasonable Grounds are Needed to Arrest a Driver:
Once a driver is stopped, the police will look for certain indicators of intoxication. These include the condition of the driver's eyes (watery, glassy, bloodshot), the smell of alcohol on the driver's breath, and slurred speech. The police will normally ask the driver if the driver has been drinking. Then the police will ask the driver to step out of the vehicle to perform several field sobriety exercises. The police will subjectively score the driver's performance on those exercises and decide whether to arrest the driver. If the police decide that there are reasonable grounds to believe that the driver is intoxicated and if the driver is arrested, the driver must submit to a chemical test to determine the alcohol content of the driver's blood.
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 a driver is under the influence of alcohol. The three tests approved for use are: (1) the one leg stand test, (2) the walk and turn test, and (3) the horizontal gaze nystagmus test.
In the One Leg Stand test, the driver is asked to hold one foot six inches off the ground, while keeping both arms down at the driver's sides and counting from 1001 to 1030 out loud. The police are to demonstrate the test to the driver, give the driver proper instructions, and then score whether the driver: (a) starts before the police tell the driver to start, (b) sways while balancing, (c) uses the driver's arms for balance, (d) hops, or (e) puts the driver's foot down. If the driver misses on any two grading points, the driver fails the test. If the driver puts the driver's foot down three or more times, the driver fails the test.
In the Walk and Turn exercise, the driver is asked to stand with feet together and hands at the driver's side. The driver is then asked to take 9 steps heal to toe, pivot, and return 9 steps, while counting each step out loud. The police are to demonstrate this test and give proper instructions. The police then score the driver on whether the driver: (a) sways while listening to the instructions, (b) starts before the instructions are completed, (c) stops while walking, (d) fails to touch the heel to the toe, (e) steps off the line, (f) uses the driver's arms for balance, (g) loses balance while turning, or (h) takes the incorrect number of steps. If the driver misses on any two grading points, the driver fails the test. If the driver steps off the line three or more times, the driver fails the test.
In the Horizontal Gaze Nystagmus test, the police ask the driver to follow some object (e.g., a finger, ink pen, or pen light) which is held 12 to 15 inches in front of the driver's nose as the object is passed from side to side in front of the driver's face. The police look to see if the driver's eyes "jerk" as they move from side to side. NHTSA guidelines inform that the officer is supposed to look for this "jerking" movement prior to each eye reaching an angle of 45 degrees from center. Also, the police look for jerking when the driver's eyes are moved as far right and left as possible. Finally, the police look for the driver's ability or inability to smoothly pursue the object with each eye. If the driver scores four points out of six, the driver fails the test.
Once a driver is arrested, the police officer must advise the driver: (a) that refusal to submit to a test may be used against the driver in a criminal prosecution and (b) that the driver's license will be immediately revoked for one year if the driver does refuse. If the driver refuses the test, the police officer will serve the driver with a refusal notice.
A Driver has 20 Minutes to Contact an Attorney for Advice:
After the driver is arrested, normally the driver will be asked to take a breath test at the police station. The police must inform the driver of the consequences of refusing the test, i.e., that the driver's license will be immediately suspended or revoked for one year. If the driver requests it, the driver must be allowed 20 minutes in which to contact an attorney for advice.
The Right to Have a Second Test:
If the driver takes a breath test at the request of the police and is unhappy with the test results, the driver has the right to have a second test under state law. This second test is done at the driver's expense. If the driver knows a doctor or a nurse who is willing to come to the police station and take a blood sample, the police must allow the medical professional to do so. The blood can be tested at a later time by a toxicologist or at a commercial laboratory to determine the alcohol content. The law is unsettled as to whether the police are required to transport the driver to a hospital emergency room for a blood draw.
Observation Period:
Missouri's regulations on blood and breath testing provide that the driver should be "observed for at least 15 minutes" before taking the breath test. The purpose of an observation period is to make sure that the driver does not contaminate the breath sample. The driver may not smoke or ingest any food or fluids during this time. If vomiting occurs, the observation period must start over.
Breath Test:
Missouri uses breath analyzer machines to measure the amount of alcohol in a driver's system. These machines operate on the principal of absorption of infrared energy. Ethyl alcohol absorbs infrared energy having wave lengths in the 4-micron range. The amount of alcohol present in a driver's breath sample is determined by measuring the amount of infrared energy absorbed by the alcohol molecules in the sample. The driver's breath sample is captured in a special sample chamber contained within the machine. A source lamp emits infrared light, which passes through the breath sample. A detector is used to determine the amount of infrared energy absorbed.
Administrative Hearings:
If the driver takes a breath test and the test result is .08% or above (.02 if the driver is under 21), the police will take the driver's license and give the driver a temporary license and a hearing request form. The hearing request form must be completed, mailed and postmarked within 15 days of the driver's arrest. If the police do not take the driver's Missouri license, the driver must mail it in with the hearing request. The driver will be notified of the date, time, and location of the hearing. The sole issues at the hearing will be: (1) whether the arresting officer had probable cause to believe the driver was driving while intoxicated and (2) whether the driver's blood alcohol content was above the lawful range.
If the administrative hearing officer rules against the driver, the driver's license will be suspended or revoked. The driver has the right to file an appeal of the decision to the circuit court and to have a trial before a fair and impartial judge. The legislature has prohibited the courts from staying the suspension or revocation of the driver's license pending the outcome of that trial.
Trial De Novo:
If the decision of the administrative hearing officer is appealed by the driver, the appeal must be filed within 15 days of the date the hearing examiner mails the decision in the circuit court of the county where the arrest took place. The issues are the same as those presented in the hearing. At a trial de novo, the Director of Revenue has the burden of proof.
If the Director proves the case, the burden shifts to the driver (who appealed) to rebut the evidence presented by the Director. Issues which can be raised at trial include (1) whether there was probable cause to arrest the driver, (2) whether there was sufficient foundation to admit the breath test result, or (3) whether the driver was "driving" or "operating" the vehicle.
Civil Penalties:
If a driver has not had any previous alcohol-related convictions or suspensions in the five year period preceding the current conviction, the suspension period will be 30 days. The driver may not drive at all during this period. During the next 60 day period, the driver may obtain a restricted driving privilege in connection with the driver's occupation or employment.
If the driver has a previous DWI conviction, blood alcohol conviction, administrative alcohol suspension, or a chemical refusal on the driver's driving record in the five year period preceding the current conviction, the revocation period will be for 1 year. The driver will not be eligible for a hardship driving privilege during this one year period.
Refusing the Breath Test or Blood Test:
If the driver has not previously refused a breath test and the driver is otherwise eligible, the driver may be able to obtain a hardship driving privilege to drive in connection with the driver's employment after serving the first 90 days of the revocation period. This is true even if the driver has had a previous alcohol conviction or administrative suspension within the five year period prior to the revocation.
If this is the driver's second arrest within five years and the driver has a previous administrative suspension or alcohol conviction (but not a refusal) on his or her record, and if the driver takes the test and fails, the driver's license will be revoked for 1 year. The driver will not be eligible for a hardship driving privilege.
If the driver refuses the test, the driver's license will be revoked for 1 year. The driver may be eligible for a hardship privilege after 90 days.
5 and 10 Year License Denials:
Any driver who receives two convictions for DWI in a five-year period will have the driver's license revoked. The driver will not be eligible to have the license reinstated for a period of 5 years. The driver may apply for a hardship driving privilege after 2 years, provided that neither of the convictions were felonies, and provided that the driver is not otherwise ineligible because of having twice refused to take a breath or blood test.
Any driver, who receives three or more convictions for any combination of DWI within a lifetime, will have the driver's license revoked. The driver will not be eligible to have the license returned for a minimum of 10 years. The driver may apply for a hardship driving privilege after 3 years, provided that neither of the convictions were felonies, and provided that the driver is not otherwise ineligible because of having twice refused to take the breath or blood test.
Points for Alcohol-Related Traffic Convictions:
A conviction for a DWI will result in the imposition of 8 penalty points on the driver's license if there are no previous alcohol-related convictions. If there are prior convictions, a conviction for a DWI will result in the imposition of 12 points on the driver's license.
A 30-day suspension followed by a 60-day period of restricted driving privileges will result from a first DWI conviction. A 1-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.
Criminal Penalties for DWI:
For a first conviction for DWI, the punishment is up to 6 months in jail, a $500 fine, or both.
A second conviction within a 5-year period for a DWI is a Class A, Misdemeanor, and is punishable by up to 1 year in jail, a $1,000 fine, or both.
A third conviction for DWI within a 10-year period is a Class D, Felony, and is punishable by up to 5 years in prison, a $5,000 fine, or both.
Mandatory Education and Counseling Programs:
As a condition of probation in any DWI case, the judge is required to order the driver to complete the Substance Abuse Traffic Offender Program (SATOP). The driver is also required to complete the program as a condition of the return of the driver's license at the end of a suspension or revocation period. The program consists of three levels.
Insurance (SR-22) Requirements:
In order to reinstate a driver's license after an administrative DWI suspension or revocation, or a point suspension or revocation resulting from an alcohol-related traffic conviction, the offender is required to maintain an SR-22 filing with the state for a period of 2 years from the effective date of the suspension.
Vehicle Ignition Interlock Devices:
If the driver pleads guilty to, or is found guilty of, a first offense DWI, the court may order the driver to install an ignition interlock on the driver's car as a condition of probation. The driver must blow into this device to start the driver's car and periodically while driving. If the device detects alcohol on the driver's breath, the car will not start. A record of that fact will be made, and the judge will be notified.
If the driver pleads guilty to, or is found guilty of, a second or subsequent DWI, the court must order the driver to install the device on the driver's vehicle, with certain limited exceptions. The cost of installation ranges from $50 to $100. The driver will also have to pay $50 to $75 per month for the privilege of having the device on the car.
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