Q: What Happens If I Refuse to Take The Breath Test?
A: Warning: Refusal to submit to a Chemical Test may have severe consequences and should not be undertaken except upon the advice of your attorney.
Assuming the request is properly made, your refusal to submit to a chemical test will result in issuance of a notice by the arresting officer that your license is revoked. The officer shall also issue a fifteen day temporary driving permit on behalf of the director of revenue which will also give you notice of your right to file a petition for review in circuit court contesting the license revocation. If no further action is taken on your part, when fifteen days expires you will lose your driving privileges for at least one year and you will need to apply for a new driver’s license at the end of the revocation period.
Q: I Was Arrested Last Night. I Refused the test. What now?
A: Don’t panic! At least not yet. Retain an attorney immediately. Your lawyer must file a Petition for Review in the Circuit Court before your fifteen day permit expires. Once a Petition for Review has been filed, your lawyer can obtain a Stay Order which will allow you to drive during the period that your petition for review is pending. There are valid defenses to the revocation, particularly if no field sobriety tests were administered and no glaring evidence of intoxication. There may also be a possibility of settlement that would allow you to avoid the revocation
Q: I took the test and it registered over .08 percent blood alcohol content. Is there any way to save my license?
A: Yes. Maybe. Assuming that you blew over .08, the arresting officer gave you notice of suspension or revocation of your driving privileges. (Generally a 30 day suspension if this is your first charge for driving while intoxicated). You should also have received a fifteen day driving permit and instructions on how to request an administrative review of the suspension or revocation by the department of revenue.
If you apply for a hearing, (or better yet, have your attorney make the application), within the fifteen day period, the department of revenue will issue a temporary permit allowing you to drive until the scheduled date of your hearing. (This assumes that you are the holder of a valid driver’s license issued by this state.) At the hearing, which may be by telephone, the hearing officer will determine whether, by a preponderance of the evidence, you were arrested upon probable cause to believe that you were driving a motor vehicle while the alcohol concentration in the person’s blood, breath, or urine was eight- hundredths of one percent or more by weight. As a practical matter, most of these hearings are determined in favor of the department of revenue and the suspension or revocation is sustained. Still, there are technical defenses, and each element must be proved. It is this writer’s opinion that you should always request the administrative hearing — there is little to lose. In the rare event that you prevail, your full driving privileges will be restored.
If you lose the administrative hearing, your lawyer can file for Trial De Novo (a re-hearing) in Circuit Court. These case are rarely successful, although a few are won where the evidence is unique and/or the arresting officials failed to follow proper procedure. You and your lawyer should discuss the likelihood of success and do a cost-benefit analysis prior to filing for Trial De Novo.
Q: I have been charged with DWI. What now?
A: Whether you took a breath test, or refused to take the test, the arresting officer had grounds to believe you were driving while intoxicated and you have been issued a summons to appear in court. This is a Criminal charge independent of any action pertaining to your driver’s license.
As with any criminal charge, you are presumed innocent until you are proven, or plead, guilty. It is important that you retain the services of an experienced attorney at the earliest possible opportunity to determine the strengths and weaknesses of your case. You attorney will help you make an informed decision whether (and when) to proceed to trial or attempt to negotiate a plea bargain.
Under Sections 577.010.2 and 577.012.3 of the Missouri Revised Statutes, the first offense of Driving While Intoxicated and Driving with an excessive blood alcohol content, is a class B misdemeanor. The range of punishment is up to six (6) months in the County Jail or up to a $500.00 fine, or both. A second offense of DWI is a class A misdemeanor with a range of punishment up to one (1) year in the County Jail, or up to a $1,000.00 fine, or both. Persons who have been convicted or plead guilty to two or more intoxication-related traffic offenses may be convicted of a felony and subjected to time in prison.
If you have been charged with a DWI, your choice of an attorney is crucial. See our guidelines on selecting the right attorney.
For experienced professional representation, contact Lloyd Nolan today at (314) 725-1880. DISCLAIMER: THE FOLLOWING INFORMATION WAS OF A GENERAL NATURE AND NOT MEANT TO CONSTITUTE LEGAL ADVICE OR TO BE USED IN, OR APPLIED TO, ANY INDIVIDUAL SITUATION. THIS GENERAL INFORMATION IS APPLICABLE TO THE STATE OF MISSOURI AND MAY NOT BE VALID UNDER THE LAWS OF OTHER STATES. IF THE READER HAS SPECIFIC LEGAL QUESTIONS, HE OR SHE SHOULD CONTACT AN ATTORNEY.
2014 Lloyd Nolan, Attorney at Law