MISSOURI DWI LAWYER
KANSAS CITY METRO ATTORNEYS
Our law firm handles Missouri DWI (Driving While Intoxicated) cases. The terms DUI and DWI cover the offense of driving with a breath alcohol content of over .08, or while under the influence of alcohol to the extent that a person is not safe to drive. Please click here for more information regarding the difference between a Missouri DUI and a Missouri DWI.
Below you will find some general information concerning Missouri DWI cases. It must be stressed that none of the information contained in these documents should be construed as legal advice, nor does it create any attorney-client relationship between Norton Hare, L.L.C. and the reader. We are providing it here purely for informational purposes regarding DWI law in the state of Missouri. However, this information in no way represents the totality of the law and issues related to Driving While Intoxicated in Missouri. It is but a brief overview. It is certainly no substitute for the advice of an attorney, and no person should undertake the awesome challenge of a DWI defense case without competent counsel. Also, the law is constantly evolving and changing. This information is accurate as of January 2009. Please check with an attorney.
GENERALLY: When a person is arrested for a DWI in Missouri, there are essentially two different lawsuits that are instigated: (1) a criminal case wherein the person is charged with DWI under Missouri Criminal Law, and (2) an administrative action against the person’s driving privileges.
Missouri DWI & the Criminal Justice System
TWO TYPES OF MISSOURI DWI: There are two separate ways for the prosecutor to prove a DWI case in Missouri:
- (1) By proving that the defendant was an unsafe driver due to impairment by alcohol and/or drugs (including prescription or non-prescription drugs) by using the officer's observations, including manner of driving, field sobriety tests, the smell of alcohol, etc.
- (2) By proving that the defendant was driving a vehicle at a time when his blood alcohol level was .08 or greater. The prosecutor must prove beyond a reasonable doubt that the test the defendant was given was a valid test and administered properly.
The second type of DWI, is actually known as a BAC, for "Blood Alcohol Content", and requires a blood, breath or urine test. The ramifications of a conviction for a BAC may be different than for a DWI. In a refusal case, the prosecutor has no choice but to pursue the first type of "traditional" DWI case.
PENALTIES: The penalties for driving under the influence depend on whether one has had a prior "alcohol related law enforcement contact". A prior alcohol related contact includes, among other things, a refusal to submit to testing, administrative suspension/revocation, and DWI or BAC convictions from Missouri or another state. Missouri has two important windows of time: 5 years and 10 years. This calculation is made based on the date of the prior conviction to the date of the current arrest.
SUSPENDED IMPOSITION OF SENTENCE: Before we talk about the penalties of conviction it is necessary that we look at disposition known as a "Suspended Imposition of Sentence", most commonly referred to as a "S.I.S.". An SIS is an option by which the defendant admits guilt to the DUI or another offense, but is not formally convicted. Whether a person is granted a SIS or not is up to the judge. Generally, a SIS is an agreement between the defendant and the prosecutor in which the defendant agrees to accept responsibility for the crime, agrees not to violate any laws for one year, not to drink alcohol for some period of time (usually one or two years), not to go to places that serve alcohol except sporting events and restaurants, and to take random urine samples to insure compliance. The defendant must also attend the SATOP class (discussed below), and do anything else requested by an alcohol counselor, probation officer or prosecutor. The prosecutor agrees that, if the defendant holds up her end of the bargain, the charges will be dismissed at the end of the probationary period.
A SIS does not result in a criminal suspension of driving privileges and is not a conviction. However, one could still have his driving privileges suspended in the administrative (civil) proceedings. A SIS is considered a "conviction" should the person get a subsequent DUI within ten years. A SIS may be denied to anyone who has had a prior conviction or diversion for anything, that tested at over a .20 on the breath or blood test, or that was particularly rude or aggressive toward the arresting officer.
SATOP: SATOP stands for "Substance Abuse Traffic Offender" and everyone who has a SIS, is convicted for DWI/BAC, or who gets an alcohol related suspension/revocation must complete the class before he or she can be successfully discharged from a criminal sanction and get his or her driver's license reinstated. The class presents alcohol and drug education and treatment and is available all over the state of Missouri. There are three levels of SATOP:
- (1) Offender Education Program (OEP): This level consists of 10 hours of education which can be done on a weekend day or over a couple of weekday nights. It costs about $200.00.
- (2) Weekend Intervention Program (WIP): This consists of 48 hours locked down in a secure facility in which treatment and education is provided. It costs about $400.00.
- (3) Clinical Intervention Program (CIP): This level consists of about 50 hours of outpatient treatment, including individual and group therapy. It costs about $800.00.
Conviction: A person that pleads no contest, pleads guilty or is convicted at trial is subject to the following judicial penalties:
DWI FIRST OFFENSE: Conviction of a first DWI is a Class B misdemeanor.
JAIL: Up to a maximum of six (6) months imprisonment.
FINE: Up to $500.00. Court costs may also be between $10.00 and $100.00.
PROBATION: The general terms of probation are no drinking, do not break the law, go to SATOP, etc. Probation usually lasts 1 to 2 years. A conviction with probation is commonly referred to as a "Suspended Execution of Sentence" or SES.
SUSPENSION OF DRIVING PRIVILEGES: A criminal conviction of a first time DUI results in a 30 day suspension of driving privileges followed by a 60 restriction to driving only to and from work, in the course of employment, or to alcohol treatment. There are no hardships or exemptions available. This suspension goes on the person's driving record. The court may also require that a person be restricted to driving a motor vehicle which has an ignition interlock device while on probation. The device costs $50.00-100.00 to install and $50.00-$75.00 per month to maintain. A conviction will result in 8 points being assessed against the driver's license.\
DWI SECOND OFFENSE: Conviction of a second DWI within a five yeaar period is a Class A misdemeanor.
JAIL: Up to a maximum of one year in jail.
FINE: Up to $1,000.00, plus court costs of between $10.00 and $100.00.
PROBATION: Only after a person has served a mandatory minimum of 48 hours of incarceration are they eligible for probation. The jail requirement may be waived in lieu of doing 10 hours of community service. The terms of probation are standard: no breaking the law, no drinking, no going to places where alcohol is served, attend SATOP, etc. Court ordered AA meetings, outpatient treatment, or inpatient treatment programs are also a possibility. Probation will often be for a one or two year period.
REVOCATION OF DRIVER'S LICENSE: A criminal conviction of a second time DWI within 5 years results in a five (5) year revocation of driving privileges. A hardship license may not be applied for until 2 of the 5 year revocation has been served. This suspension goes on the person's driving record. 12 points are assessed against the driver's license regardless of how old the first DWI conviction was. The court must also require that a person be restricted to driving a motor vehicle which has an ignition interlock device while on probation. The device costs $50.00-100.00 to install and $50.00-$75.00 per month to maintain.
DWI THIRD OR SUBSEQUENT OFFENSE: Conviction of three or more DWI's within 10 years results may mean that the driver is deemed to be a "Persistent Offender" and guilty of a Class D Felony. There will also be a 10 year denial of driving privileges.
JAIL: Up to five (5) years in prison.
FINE: Up to $5,000.00, plus court costs of between $10.00 to $100.00.
PROBATION: Missouri law prohibits a suspended execution of sentence for a felony DWI. The court may suspend execution of sentence after 10 days in jail or 60 days of community service. The defendant is then placed on a probation.
REVOCATION OF DRIVING PRIVILEGES: Upon a third or subsequent criminal conviction for DWI, the defendant's driver's license is revoked for 10 years regardless of how old the two prior convictions are. These suspensions go on the person's driving record. If convicted of a felony DWI, no hardship license is available. If the DWI is a third, but not a felony, a hardship license may be applied for after 3 years. The court must also require that a person be restricted to driving a motor vehicle which has an ignition interlock device while on probation. The device costs $50.00-100.00 to install and $50.00-$75.00 per month to maintain.
PLEA BARGAINING: Sometimes a prosecutor can be convinced that a DWI conviction is unlikely at trial and he or she will agree to reduce the DWI charge to another offense, such as "Careless and Imprudent Driving" or "Improper Lane Change". The penalties, probation or SIS requirements may or may not be the same as those suffered under a DWI disposition, but the person's driving record will not reflect a DWI.
EXPUNGEMENT: Missouri law provides that a person may have a one-time alcohol related offense, either a DWI or BAC, expunged from his or her driving record after ten (10) years have passed from the date of conviction. The driver must file an application in the court of conviction and must not have had any other alcohol related contacts during the 10 year period. Administrative driver's license actions may not be expunged.
Missouri DWI & Administrative Driver's License Suspension
As discussed previously, there are two separate proceedings initiated when a person is cited for DWI. At the same time that a person is being prosecuted criminally, a civil administrative suit is brought by the Department of Revenue against his or her driver's license. Neither case has any bearing on the other.
After a person has been read the implied consent notice, been tested, or refused the test, the police officer will keep his or her plastic driver's license. He must serve the person with a yellow form entitled "Notice of Suspension/Revocation of Your Driving Privileges" that has been properly filled out by the officer. This form will serve as the person's driver's license during the pendency of the administrative suit.
This slip of paper, if you read the fine print, will tell you that the driver/arrestee must send a request for a hearing concerning the driver's license in to the Department of Revenue in Jefferson City within 15 days of the arrest. The form for requesting the hearing is at the bottom of the "Notice of Suspension/Revocation". If the officer did not keep the driver's license for some reason, that license must be submitted to the Department of Revenue within 15 days, as well. If the driver fails to send this piece of paper in within the time limit, his license will be automatically suspended by the Department of Revenue. If the driver or his attorney does request a hearing, the driver will be given what is called an Administrative Hearing.
American Due Process provides that before the government can take away your property, you must be given an administrative hearing to determine whether that taking is lawful. When the Department of Revenue receives this request, they will send notice to the driver and/or his attorney that they have received it. The driver's privileges remain valid pending the hearing. About three to six weeks after the request is mailed in, the driver and/or his attorney will receive notice of the hearing date and time. The hearing date is chosen by the Department and usually cannot be changed, moved or continued. The hearing may be conducted in person or by telephone conference.
IF YOU TOOK THE TEST: At the administrative hearing of a driver who took and failed a test, the state has the burden to prove (1) that the officer had probable cause to believe that the person was operating a vehicle while under the influence of alcohol and/or drugs; and (2) that the subject tested at .08 or more. Those are the only issues at the hearing and if they prove it, you lose your license. The state will often rely on a form called an "Alcohol Influence Report" (AIR) filed by the officer. The driver may put on any evidence that may be relevant at the hearing. If the hearing officer finds against the driver, he or she issues a "Sustain Order" and suspension/revocation commences 15 days from the date the order is mailed.
SPECIAL NOTICE FOR MINORS: Missouri has a "zero tolerance" law pertaining to minors. It is illegal for a person under the age of 21 to operate a vehicle with a blood alcohol of .02 or more. If you are under the age of 21 and you submit to a breath, blood or urine test and your alcohol concentration is determined to be .02 or greater, and you have no prior alcohol related law enforcement contacts, your driving privileges may be suspended for 30 days followed by 60 days of restricted driving. If the person has a prior alcohol related contact within 5 years, privileges will be suspended for one year. You must also complete the SATOP program. The good news is that the suspension will be expunged after 2 years or when the person turns 21, whichever comes first. If you refuse a test, the potential penalties are the same as for those over 21.
Persons under the age of 21 are also exposed to the "Abuse and Lose" provisions of the law which can effect their driving privileges. A court will enter a suspension/revocation for any minor who commits and alcohol related traffic offense, an offense of possession of alcohol while operating a car, possession of drugs, using or creating a fake I.D., or a second possession of alcohol by a person under age 18. The first time gets you a 90 day suspension. 2nd time is a 1 year revocation.
OTHER ISSUES OR DEFENSES: Administrative hearings in Missouri are tough to win because the issues are limited. The arresting officer doesn't even have to present for the hearing! Yet, there are defenses that ought to be pursued. Whether a person was even driving may be a defense. Whether a person drank alcohol after driving may be a good defense. There are certain statutory or constitutional arguments and defenses. There are also medical defenses (diabetics may often appear intoxicated during a period of insulin deficiency; asthmatics may have a hard time blowing into breath testing machine).
Another defense that works in certain cases is to hire an expert to do what is called a "retrograde extrapolation". Under this method, the expert will take the amount of alcohol consumed by an individual, and the time of such consumption, and determine what the person's blood alcohol level would have been at the time of driving as opposed to an hour or so later when he or she was tested. Sometimes, the expert can determine that the driver was actually under the legal limit at the time of driving and his or her driving privileges can be saved. The list of defenses is only limited to the work and creativity that you and your attorney put into developing a defense for the administrative hearing.
SUSPENSION PENALTIES: If a Sustain Order is issued after the administrative hearing:
- FIRST TIME FAILURE OF A TEST: For a driver with no alcohol related law enforcement contacts within the previous five years, driving privileges are suspended for 30 days followed by 60 days of Restricted Driving Privilege. The restricted license is available upon showing proof of insurance before the 30 days suspension has expired. The restriction allows a person to drive "in connection with a person's business, occupation or employment, and to and from an alcohol education and treatment program" only. This goes on the person's driving record and stays for five years.
- SECOND AND SUBSEQUENT FAILURES OF A TEST: Driving privileges are suspended for one year. You are not eligible for a hardship license. This goes on the person's driving record and stays for five years.
IF YOU REFUSED THE TEST: Driving privileges are revoked for one (1) year. However, if it is your first, you can apply for a hardship license after 90 days. This goes on the person's driving record and stays for five years.
NOTE: The administrative hearing and the criminal case are two separate suits. Neither one has any bearing whatsoever on the other. However, if you are suspended pursuant to one, that suspension will be run concurrent with a suspension in the other. So, if you lost at the administrative hearing and at trial, and it was your second time DUI, you would only be suspended for one year total. But, your driving record will reflect two separate suspensions for the same arrest.
APPEALING THE SUSPENSION: Every driver has the right to appeal the administrative driver's license suspension to the circuit court of the county in which the arrest was made. A Petition for Review of a license revocation must be filed within 15 days of the date that the suspension was mailed by the Director. If an appeal is taken, the matter is heard anew by a judge in the courtroom and the administrative hearing is treated as though it never happened. These appeals are usually handled by the Department of Revenue.
HARDSHIP LICENSE: If you have been revoked from driving in Missouri for convictions or a refusal, you may be eligible for "Limited Driving Privileges", most commonly known as a hardship license. You may apply for a hardship license to either the circuit court of your county of residence or the Director of Revenue. There are many reasons why a hardship license may not be granted, including the fact that you have been convicted of a felony involving the use of a vehicle, the failure to pay child support, or suspension in another state. There are also many requirements concerning when a person may apply for the hardship license. For instance, a person convicted of 2 DWI's within 5 years may not apply for a hardship license until he or she has served at least 2 of the 5 years of revocation. You should consult with an attorney concerning whether you are eligible for a hardship license.
IGNITION INTERLOCK DEVICE: Missouri DWI laws now require that a driver be restricted to only driving a vehicle equipped with an ignition interlock device for 6 months upon reissuance of a driver’s license following a 5 or 10 year suspension. An ignition interlock device is also required for 6 months after a second Missouri DWI conviction or after a second administrative driver’s license suspension within a five year time frame. An ignition interlock device may also be required as a condition of obtaining a hardship license.