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Missouri DWI Failed Breath Test Cases

When you are arrested for a DWI in Missouri after failing a chemical test for blood alcohol, you will face a license suspension/revocation and a criminal case. I will be referring to the test as a “breath test,” although it is possible to fail a blood alcohol test by blood, urine, or saliva test. Breath test does not refer to the portable, hand-held devices (PBT) that officers use on the scene of the stop. 

Driver's License Suspension/Revocation

You will be given a Form 2385 after being arrested for a DWI with a blood alcohol content (BAC) over 0.08%. This form will serve as your temporary driver's license for 15 days. A small section at the bottom of the page can be filled out, detached, and sent to the Driver License Bureau to request an administrative hearing. You must do this within 15 days of receiving the form. It is a good idea to hire a lawyer for this. They can ensure the paperwork is correctly filled out and sent promptly,  and they can represent you at the administrative hearing.

Administrative Hearing

RSMo 302.505 gives the Department of Revenue (DOR) the authority to suspend or revoke a driver's license when the driver is arrested upon probable cause to believe that they were operating a motor vehicle while their blood alcohol concentration was 0.08% or more. The administrative hearing is an opportunity to argue to the DOR that those elements are not present. 

The DOR only needs to find probable cause that you were driving while intoxicated. Probable cause means a “reasonably prudent person” would find enough evidence to think that was the case.  That is a low bar, but an experienced DWI attorney sometimes finds enough problems with the state's case to win the hearing. 

Occasionally, a good attorney can find an issue with the probable cause for the arrest or other circumstances surrounding the case, but more often, the problem will be with the testing itself. As established by Stuhr v. D.O.R. 766 SW 2d 446 and others, case law holds that the test must be done 1. Following approved techniques and methods of the Division of Health 2. By an operator holding a valid permit 3. On equipment and devices approved by the division. An experienced DWI attorney will know how to analyze the details of your case to find any place where the testing does not comport with those rules. 

DWI License Suspension Lengths

The length of your driver's license suspension is based on your driving record for the previous five years. If you have not been convicted or suspended for an alcohol- or drug-related driving offense in the past five years, you will receive a 90-day suspension. If you have, your license will be revoked for one year. Multiple offenses, especially within a 5-year period, can lead to a 5- or 10-year denial of your driver's license. 

You will be eligible for a restricted driving privilege while serving the 90-day suspension. There are two different kinds of restricted driving privilege. With one, you can drive with an ignition interlock and SR-22 insurance for the duration of your suspension. With the other, you can serve 30 days of the suspension and then drive the remaining 60 days without an ignition interlock (unless you have prior alcohol convictions older than five years). Both types of privilege are meant to be used to drive to work, school, court, grocery shopping, etc., and are not unlimited in scope. 

You may be eligible for a limited driving privilege if your license is revoked. This is similar to the restricted driving privilege in that you can use it to attend essential functions, and you must have an ignition interlock and SR-22 insurance. 

It is important to contact a lawyer to help you with a restricted or limited driving privilege. There are quite a few complexities and requirements, and an experienced attorney can walk you through everything. 

Failed Breath Test Criminal Cases

A DWI charge is a serious matter, and it is a good idea to hire an experienced attorney to help. Facing a DWI without legal help can be daunting. A good lawyer can guide you through the process, examine the evidence against you, negotiate with the prosecutors, and, if necessary, conduct a trial. 


As soon as you get a DWI, you will need to take steps to lessen the impact. Some of the most important can be found here. Many issues and concepts will come up during the process, like ignition interlock, SATOP, the administrative hearing, and others that might be new to you but routine to an experienced DWI attorney. They can advise you on navigating this difficult time with the least stress and worry possible. 

Examine the Evidence

You can't get a great outcome if you don't poke some holes in the state's case. To do that, you need an experienced, competent lawyer who knows what they are looking for. Sometimes they can find enough wrong with the arresting officer's actions that the case is dismissed. Other times the charge can be reduced to a much lesser one. 


Finding problems with the state's case is just the start; you need to convince the prosecutor that the problems are serious enough that they will have a hard time making a case. Even a good attorney can have a hard time with this. Every case and every prosecutor is different, and it takes an experienced attorney to know how to present matters for a favorable outcome. 

What is the Process After You Hire a Lawyer for a Missouri DWI?

The first step is getting form 2385 filled out and sent to the right place. After that, from a client's perspective, not much will happen for a while. The attorney will file motions to make the state show all the evidence in the case. The attorney will then examine all the evidence and, often, need to request additional evidence or clarify specific facts presented. The administrative hearing and negotiation with the prosecutor cannot proceed until all the evidence is thoroughly examined. 

In most cases, you can continue driving during this process. Your attorney should be able to get periodic renewals of your temporary driving permit until the administrative hearing is held. As more evidence comes in and the picture becomes clearer, your attorney might have you do certain actions like a SATOP assessment to put you in the best position for a smooth outcome.   

After your attorney has examined all the evidence to their satisfaction, they will attend the administrative hearing. Most likely, you will not need to attend court during this process. Your attorney will keep you informed and tell you how to deal with any issues. If there is a license suspension, your attorney can give you options on how to deal with it. 

Your attorney will also negotiate with the prosecutor at this time. If they come to a resolution that you find acceptable, you can go to court to accept the deal. If for some reason, negotiations break down, you will need to discuss the possibility of a trial. DWI trials are thankfully rare, especially if you have an attorney who is a good negotiator. 

All in all, your attorney will handle most of the DWI process. There are occasionally things you need to do, mainly to deal with a possible license suspension, but for the most part, your attorney will take care of things and keep you informed when there are developments. 

Hire Ruth Beerup

Ruth Beerup is an attorney with tremendous experience handling DWI cases in the St. Louis area. She prides herself on having a client-centered approach that minimizes the impact of this stressful situation. Contact her at 636-940-1111 to see if she can help with your case.  


Case evaluations are free and you will always talk directly with Ruth. She can tell you exactly what charges you are facing and give you some options on how to deal with them. So, even if you don’t hire her for your case, you can still get a better understanding of your situation. Call 636-940-1111 now.