When you are arrested for DWI in Missouri after refusing a police officer's request to take a chemical test for drugs or alcohol, you will face two problems: the Department of Revenue will revoke your license for one year, and the local prosecutor will pursue criminal charges for DWI. These two actions are separate and independent of each other.
The Department of Revenue action is predicated on the fact that any time you operate a motor vehicle on Missouri highways, you give police permission to test for drugs or alcohol in your bloodstream (RsMo 577.020). This is known as implied consent. There are limitations on how and when a police officer can request that you test, but refusing a legitimate request gives the DOR legal right to revoke your license. This revocation can happen even if you are completely sober when the officer requests the test.
A police officer will often use a portable, handheld breath test at the scene of the stop to help determine if a driver has been drinking. Refusing this test does not lead to a revocation. Refusal only applies to tests on certified machines after the police have completed several steps (arrest, read implied consent, observation period, etc.). This test often occurs after you have been transported back to the police station but not always. Some officers can do the test roadside with a portable machine attached to a printer.
How Do You Fight the License Revocation?
The arresting officer in a Missouri DWI refusal case will give you Form 4323. This form is a notice of suspension/revocation of driving privileges and will also serve as a temporary driving permit for 15 days. Near the bottom of the document is a small section that explains you have 30 days from the date you were issued the notice to file a Petition for Review with the Circuit or Associate Court of the county where the arrest or stop occurred. That's it; no other instructions are given. Most people, understandably, do not know how to proceed.
Your best bet is to hire an experienced attorney who has handled plenty of petitions for review. They can file the proper paperwork, including service on the Director of Revenue, and request a stay order from the court. The stay order will allow you to keep driving until the outcome of the petition is determined. The attorney will carefully examine all the evidence against you and identify objections against the state's case they can raise at the petition for review hearing.
The Petition for Review Hearing
Even the most experienced and skillful DWI attorney will lose more PFR hearings than they win. The Department of Revenue has relentlessly appealed every decision against them, and case law is now firmly to their advantage. Additionally, PFR hearings are civil proceedings, and many of the defendants' rights in criminal trials are not present. It is not a hearing to determine if you were driving drunk. Instead, it is solely focused on determining three facts:
- That you were arrested
- That the officer had reasonable grounds to believe that you were operating a motor vehicle in an intoxicated condition and
- That you refused to submit to a chemical test for alcohol or drugs.
As you can see, there is not much to work with here. Point #1 simply means that the officer must show that you were arrested before you refused the test. The definition of reasonable grounds for DOR hearings has been stretched pretty thin by case law. Law enforcement has been given the benefit of the doubt, and any behavior that gives the slightest indication of intoxication is usually good enough.
Still, an experienced and skilled attorney can find points of contention. Sure-fire winners are when the police officer does not read the implied consent warning and does not give the driver 20 minutes to consult with an attorney when requested. More difficult are challenges to the officer's reasonable grounds that you were operating a motor vehicle in an intoxicated condition. A diligent attorney will find ways to dispute evidence of intoxication, usually by showing that the arresting officer improperly administered the field sobriety tests.
The bottom line, in simple terms, is that if you refuse a test for blood alcohol in Missouri, the Department of Revenue will take your license for one year. The only way to fight this is to file a petition for review with the court where you were arrested within 30 days of the arrest. It is difficult to win a PFR, but an experienced attorney can try. If you plan to hire an attorney for the criminal side of your DWI, it is wise to do it quickly so they can also handle your petition for review.
Even if you lose the petition for review, it is possible to keep driving. If it is your first offense, you may be eligible for a Limited Driving Privilege, sometimes called a “hardship license.” The LDP allows you to drive to work, school, medical treatment, alcohol programs, etc. You must install an ignition interlock device and keep an SR-22 form on record. Your lawyer can tell you if you are eligible for a Limited Driving Privilege and how to get one.
An ignition interlock device is a small machine that attaches to your car's ignition. You will need to provide a breath sample to start the car and at random intervals while driving. The installation cost is usually in the $100-$200 range, and monthly fees can range from $50 to $150.
An SR-22 form is proof that you have the minimum liability automobile insurance required by law. Compliant insurance post-DWI can be higher, but it should not be prohibitive. Rates vary by provider, so it pays to shop around. The insurance company usually provides the SR-22 form to the Department of Revenue.
DWI Refusal Criminal Cases
Unless you plan to throw yourself at the court's mercy and take whatever they want to give you, it is a good idea to hire an experienced defense attorney. DWI law is voluminous and technical. You need an attorney to protect your rights.
When you hire a lawyer to defend you against DWI charges, the case will usually follow a pattern that is simple on the surface but full of complications. First, the attorney will file motions to see all the evidence the state has against you. Then they will look for law enforcement mistakes that give you a strong negotiating position with the prosecutor. Hopefully, the errors are egregious enough that the case can be dismissed. If not, a good DWI attorney can bargain for a reduced charge or a lighter punishment. A trial is necessary for the unfortunate and rare instances where the defense lawyer and prosecutor cannot see eye to eye.
Does a Refusal Help Your DWI Criminal Case?
You might think that refusing the test would give you a stronger position; after all, the state does not have a definitive test showing that you were driving over the limit. Unfortunately, this is not unequivocally true. A lawyer can attack any mistakes police make when there is a failed alcohol test, and prosecutors are more willing to negotiate if it looks like the test may be inadmissible. A refusal to take a test is almost impossible to contest, and prosecutors know they can use it in court to make it look like something close to an admission of guilt at trial.
Still, an experienced and knowledgeable DWI attorney knows many ways to contest a refusal case. Probable cause for the stop, field sobriety tests, how law enforcement got the refusal, and a whole host of other issues can all be examined for validity. That is why hiring a skilled DWI attorney to defend your rights is so important. Unless you are familiar with Missouri statutes and case law and have a professional relationship with local prosecutors, you are unlikely to reach a reasonable resolution on your own.
A DWI is a serious charge. You need a lawyer. Attorney Ruth Beerup has spent her entire 25+ year career defending clients just like you. Give her a call at (636) 940-1111 to discuss your case. She can explain what you need to do and what the stakes are even if you don't hire her. She is committed to providing excellent results at a reasonable price, so if you hire her, you are in good hands.