Summary of Missouri DWI Statutes
Driving While Intoxicated Offenses:
In Missouri, DUI is referred to by statute as DWI (Driving While Intoxicated) or BAC (Driving with Excessive Blood Alcohol Content).
DWI (Driving While Intoxicated) – A person commits the crime of “driving while intoxicated” if such person operates a motor vehicle while in an intoxicated or drugged condition. §577.010, RSMo. §577.001, RSMo defines intoxicated condition as being under the influence of alcohol, a controlled substance, or drug, or any combination thereof.
BAC (Excessive Blood Alcohol Content) (The “per se” law) – A person commits the crime of “driving with excessive blood alcohol content” if such person operates a motor vehicle with eight-hundredths of one percent (.08) or more by weight of alcohol in such person’s blood. §577.012, RSMo. Percent by weight of alcohol in the blood is based upon grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath. §§ 577.012, 577.037, RSMo.
There is no separate DWI/DUI statute for drug impairment in Missouri, and instead, driving under the influence of drugs is included in the DWI statute, §577.010, RSMo. See State v. Wilson, 846 S.W.2d 796 (Mo. App. S.D. 1993); State v. Scholl, 114 S.W.3d 304 (Mo. App. E.D. 2003); State v. Falcone, 918 S.W.2d 288 (Mo. App. S.D. 1996); State v. Walter, 918 S.W.2d 927 (Mo. App. E.D. 1996); Johnson v. Dir. Of Revenue, 168 S.W.3d 139 (Mo. App. W.D. 2005); State v. Friend, 943 S.W.2d 800 (Mo. App. W.D. 1997); State v. Walter, 918 S.W.2d 927 (Mo. App. E.D. 1996).
Element of Intoxication:
It must be shown that a subject is in an intoxicated condition for a Missouri DWI charge (§577.010 RSMo.), or has a blood alcohol concentration of 0.08% or more (without regard to actual intoxication) for a BAC case (§577.012 RSMo.). Any intoxication that in any manner impairs the ability of a person to operate a motor vehicle is sufficient to sustain a conviction for DWI under §577.010, RSMo. State v. Raines, 62 S.W.2d 727, 729 (Mo. 1933). “Intoxicated condition” is defined by statute and in Missouri Approved Criminal Jury Instructions as being “under the influence of alcohol.” A breath or blood test conforming to the statutory requirements and regulations for obtaining such sample of .08 percent or more by weight of alcohol in the blood in sufficient to sustain a conviction for Excessive BAC under §577.012, RSMo.
Element of Operation
It must always be shown that the driver drove or operated a vehicle. The term drive, driving, operate, or operating means physically driving or operating a motor vehicle. §577.001, RSMo. NOTE: Actual physical control has not been the standard in Missouri DWI cases since 1996.
Operation can be proven where any subject turns on a vehicle or engages the machinery of the vehicle. For instance, a person may be deemed to be operating a motor vehicle where the engine is running with the driver asleep in the car, pulled over on the side of the road. Cox v. Dir. Of Revenue, 98 S.W.3d 548 (Mo. 2003) (En Banc); State v. Wiles, 26 S.W.3d 436 (Mo. App. S.D. 2000); State v. Mitchell, 77 S.W.3d 637 (Mo. App. W.D. 2002). Similarly, a person steering a moving vehicle down a hill, out of gas with the engine off, is operating for the purposes of the statute. Herr. v. Dir. Of Revenue, 134 S.W.3d 686 (Mo. App. E.D. 2004).
Warning: Arrests occur routinely in Missouri where an individual gets into the driver’s seat of their parked car after leaving a bar or other establishment where they have consumed alcohol, and that person makes the decision not to drive because of concern for their ability to safely operate a vehicle, but turns on the car for the purpose of heating or cooling the car while they sit parked, waiting until they can safely drive.
Covered Vehicles or Devices:
The term motor vehicle is not defined in the Missouri DWI statutes. However, it seems clear under Missouri case law that any motorized vehicle will suffice for these purposes. There are also separate statutes for Boating While Intoxicated cases, where a motor is not even required. Golf carts, ATVs and mini-bikes have all been deemed valid motor vehicles for Missouri DWI purposes. Covert v. Dir. Of Revenue, 151 S.W.3d 70 (Mo. App. E.D. 2004); State v. Laplante, 148 S.W.3d 347 (Mo. App. S.D. 2004); State v. Bailey, 140 S.W.3d 260 (Mo. App. S.D. 2004).
You do not have to be driving a motor vehicle on a highway to receive a DWI in Missouri. Missouri case law provides a person may be guilty of DWIanywhere in the state, despite language in the implied consent warning using language of upon public highways of the state. You can be arrested for DWI for driving or operating a motor vehicle on an interstate highway, state highway, county or local road, private roads or drives, private property, parking lots, etc. Bertram v. Dir. of Revenue, 930 S.W.2d 7 (Mo. App. W.D. 1996); Peeler v. Dir. of Revenue, 934 S.W.2d 329 (Mo. App. E.D. 1996).
Penalties for DWI / BAC Offenses
First Offense (Class B Misdemeanor) – Up to six (6) months in the county jail and/or up to a $500.00 fine. As of August 28, 2010, §577.010 (DWI) and §577.012 (BAC) were amended to provide that in a county where a DWI court or docket is created or other court-ordered treatment program is available, no person who operates a motor vehicle with 0.15 percent or more by weight of alcohol in their blood shall be granted a suspended imposition of sentence (SIS) unless such person completes a DWI court program or other court-ordered treatment program. Further, the amendment provides that any person not granted a suspended imposition of sentence, who operated a motor vehicle with 0.15 to 0.20 percent or more by weight of alcohol in their blood, is subject to a required term of imprisonment of not less than 48 hours, and if the percent by weight of alcohol in the blood is in excess of 0.20, then the required term of imprisonment is not less than five (5) days
Second Offense (Class A Misdemeanor, “Prior Offender”) – Up to one year in the county jail and/or up to a $1000.00 fine. As of August 28, 2010, mandatory minimum of 10 days imprisonment before being eligible for probation or parole unless as a condition of such probation or parole, the offender participates in a DWI court program or completes 30 days of community service. Under §577.023, RSMo, to be charged as a “Prior Offender,” you must commit a second DWI related offense within five years of the guilty plea or finding of guilty in your first DWI related offense.
Third offense (Class D Felony, “Persistent Offender”) – Up to four (4) years in prison (or one year in the county jail) and/or up to a $5000.00 fine. As of August 28, 2010, mandatory minimum of 30 days imprisonment before being eligible for probation or parole unless as a condition of such probation or parole, the offender participates in a DWI court program or completes 60 days of community service. Under §577.023, RSMo, to be charged as a “Persistent Offender,” you must have at least two prior pleas of guilty or findings of guilt for DWI related offenses or one plea or finding of guilty to a prior felony DWI related offense as listed below. There is no longer a ten (10) year period to look back for priors. Two (2) prior DWI related offenses, regardless of their age, can be used to enhance to a felony
Fourth Offense (Class C Felony, “Aggravated Offender”) Up to seven (7) years in prison (or one year in the county jail) and/or up to a $5000.00 fine. Mandatory minimum of sixty (60) days imprisonment before being eligible for probation or parole. Under §577.023, RSMo, to be charged as an “Aggravated Offender” you must have at least three prior pleas of guilty or findings of guilt for DWI related offenses, or a plea or finding of guilt to a DWI related offense and a plea or finding of guilt to a prior felony DWI related offense as listed below
Fifth Offense or More (Class B Felony, “Chronic Offender”) Not less than five years nor more than 15 years in prison. Mandatory minimum of two (2) years imprisonment before being eligible for probation or parole. Under §577.023, to be charged as a “Chronic Offender” you must have at least four prior pleas of guilty of findings of guilt for DWI related offenses, or two pleas of guilty or findings of guilt to a DWI related offense and a plea of guilty of finding of guilt to a prior felony DWI related offense as listed below, or two (2) separate pleas of guilty or findings of guilt to a prior felony DWI related offense as listed below.
Other Criminal Offenses Involving Driving Under the Influence:
Felony DWI Related Offenses (Not including Felony DWI) – Assault Second Degree – §565.060(4), RSMo; Involuntary Manslaughter – §565.024; Murder Second Degree – §565.021, RSMo; Assault on a Law Enforcement Officer, etc. – §565.082, RSMo;
Commercial Motor Vehicles (Class B Misdemeanor) – It is unlawful for a person to operate a commercial motor vehicle, with an alcohol concentration of four one-hundreths (.04) of a percent or more by weight of alcohol in such person’s blood. §302.780, RSMo.
Implied Consent Laws:
Under Missouri law, any individual who operates a motor vehicle upon the public highways of the state shall be deemed to have given consent to a chemical test or tests of the person’s breath, blood, saliva or urine for the purpose of determining the alcohol or drug content of the person’s blood.
Type of advisement required: The arresting officer is required to inform the subject of the implied consent law requirements, including that the subject is under arrest for DWI or BAC, the type of test or tests requested, the penalties for refusing testing (loss of license for one year), and that evidence of the refusal may be used against them in prosecution of the charge in court
Tests permitted: Blood, breath or urine tests may be requested with up to two samples in any combination as directed by law enforcement. The arrested subject does not get to choose which test to take. 577.020.1. Krakover v. Dir. Of Revenue, 128 S.W.3d 589 (Mo. App. E.D. 2004); Dotzauer v. Dir. Of Revenue, 131 S.W.3d 371 (Mo. App. E.D. 2004); Murphy v. Dir. Of Revenue, 136 S.W.3d 141 (Mo. App. S.D. 2004); Kiso v. King, 691 S.W.2d 374 (Mo. App. W.D. 1985; State v. Brown, 804 S.W.2d 396 (Mo. App. 1991).
Independent Test Statute: Missouri law provides that a driver, once they have taken the chemical test(s) requested by the law enforcement officer, may request an independent test at his or her own expense. § 577.020, RSMo. Pursuant to § 577.020, RSMo, a subject who is arrested for DWI and submits to test at the direction of the law enforcement officer has a right to obtain an independent test by a physician, qualified technician, chemist, registered nurse, or other qualified person, at the choosing and expense of the person to be tested. Pierce v. Dir. Of Revenue, 51 S.W.3d 888 (Mo. App. W.D. 2001). It is important to note that the officer does not have to inform the driver of this right under the law unless the driver knows to ask for it. The statute also does not allow the driver to choose which chemical test to take as requested by law enforcement, and if the driver refuses to take the chemical test requested, he or she then waives the right to a separate test at his or her own expense, and will be deemed to have refused. Turner v. Dir. Of Revenue, 829 S.W.2d 671 (Mo. App. W.D. 1992).
Inability to Refuse: Any person who is dead, unconscious or who is otherwise in a condition rendering him incapable of refusing to take a test as provided in §§577.020 to 577.041 shall be deemed not to have withdrawn the consent provided by §577.020 and the test or tests may be administered. §577.033, RSMo.
Administrative and Refusal Suspensions and Revocations
Unlike many states, in Missouri there are two separate civil proceedings where a driver might get his or her license suspended for DWI. There are administrative hearing proceedings, governed by §§302.500-302.345, RSMo, for those drivers who gave a chemical test above the applicable legal limit. There is also a separate civil license revocation hearing for chemical test refusal cases, governed by §§577.020 and 577.041, RSMo.
Administrative Suspension or Revocation: For a first alcohol related DWI arrest, where the driver gave a chemical test sample over the legal limit of .08, the driver is subject to a 90-day license suspension consisting of thirty (30) days of no driving followed by sixty (60) days of restricted driving (limited to work, school or substance abuse counseling); If the driver has a prior alcohol related administrative suspension or refusal revocation within five years of the new offense, then the driver is subject to a one (1) year revocation of their driving privilege, with no restricted driving privilege available.
Chemical Refusal Revocation: For a first DWI related arrest, where the driver refuses a chemical test, the driver is subject to a one (1) year revocation of their driving privilege. §577.041, RSMo. After serving the first ninety (90) days of the revocation, the driver is eligible to apply (at a judge’s discretion) for a hardship driving privilege for the remainder of the year long revocation that allows driving for work, school, substance abuse treatment, child transportation, banking, grocery, medical care, and other necessities. §302.309, RSMo. If the driver has a prior chemical refusal on their record and refuses a chemical test following a second or subsequent DWI related arrest, the driver is subject to a one year revocation of their driving privilege, however, the driver is ineligible for a hardship driving privilege. §§577.041, 302.309, RSMo
Admissibility of refusal: The driver’s refusal to take field sobriety tests or a refusal to take requested chemical tests are admissible against him or her in prosecution of a criminal case. Cain v. Dir. of Revenue, 130 S.W.3d 1 (Mo. App. S.D. 2003). Edmisten v. Dir. of Revenue, 92 S.W.3d 270, 274 (Mo. App. W.D. 2002); Hockman v. Dir. of Revenue, 103 S.W.3d 382, 385 (Mo. App. W.D. 2003); State v. Myers, 940 S.W.2d 64, 65 (Mo. App. S.D. 1997); State v. McCarty, 875 S.W.2d 622, 623 (Mo. App. S.D. 1994); RSMo. Section § 577.041; State v. Rose, 86 S.W.3d 90 (Mo. App. W.D. 2002); State v. Williams, 847 S.W.2d 111, 113 (Mo. App. W.D. 1992
Administrative Zero-Tolerance Cases: If a driver is under 21, zero-tolerance rules apply. If a driver under the age of 21 is stopped with a BAC of .02 or higher, but under the limit of .08, the driver is still subject to suspension or revocation of their driving privilege under the timeframes listed above for administrative suspensions/revocations. §302.505, RSMo. Although the under 21 driver will not likely face a DWI charge for a breath result over .02 but under .08, they do face the possibility of a minor in possession of alcohol charge for a breath test result over .02. §311.325, RSMo.
Rules for Civil Administrative Hearings v. Refusal Hearings
As noted above, there are two separate civil license suspension or revocation hearings possible in Missouri, depending on whether or not a chemical test was taken, and failed, or whether or not the driver allegedly refused a chemical test.
Breath Test Administrative Hearing Cases: Regarding civil license suspensions where the driver gave a chemical test and the result was above the applicable legal limit, the issues in this type of administrative proceeding are whether there was probable cause to arrest the subject for some type of alcohol-related traffic offense and whether the subject was driving with a BAC at or above the legal limit. House v. Dir. of Revenue, 997 S.W.2d 135 (Mo. App. S.D. 1999). For a driver under the age of 21, there is an additional issue of whether the driver was stopped upon probable cause to believe that they were driving while intoxicated or stopped for a state, county or municipal traffic violation. §302.505, RSMo. In these types of cases, the driver must receive a notice of suspension/revocation (Form 2385) if the test results are available at the time of arrest, (or it can be later mailed if the results are not available until later, such as where a blood sample is taken), and the sworn report of the officer must be filed with the Missouri Director of Revenue. If the driver wishes to challenge the suspension/revocation of his or her driver’s license for submitting a chemical test over the legal limit, a request for administrative hearing must be filed within 15 days of being served the notice, whether the service was in person or otherwise. There are no exceptions to the 15 day filing rule, and requests that are not timely filed will be denied. Darr v. Dir. of Revenue, 897 S.W.2d 697 (Mo. App. E.D. 1994).
This type of administrative hearing is not conducted in the circuit court of the county where the driver was arrested, but is conducted by Director of Revenue at the first level. The driver does not get a hearing in front of a circuit court judge in the county of arrest unless the driver exhausts all of his or her administrative remedies. Marquart v. Dir. of Revenue, 896 S.W.2d 716 (Mo. App. E.D. 1995). In other words, if the driver does not appear at the first hearing, rights to an actual trial in circuit court on a trial de novo appeal are waived.
If a request for an administrative hearing is made in a timely manner in such an administrative proceeding, the driver may keep driving while the hearing is pending. If the driver does not prevail on the first level administrative hearing, he or she will have a license suspension imposed 15 days after the hearing officer’s adverse ruling against the driver, regardless of whether the driver even ultimately wins the matter at trial de novo in circuit court on appeal. State ex rel. Director of Revenue v. Gabbert, 925 S.W.2d 838 (Mo. banc 1996).
If the driver loses the first-level administrative hearing, a petition for trial de novo must be timely filed in the circuit court of the county of arrest. To be deemed timely filed, the petition for trial de novo must be filed by the effective date of the suspension/revocation. There is no provision to allow a stay of the imposed suspension or revocation pending the outcome of the trial de novo.
Chemical Test Refusal Cases: Administrative license revocation cases involving the driver allegedly refusing a chemical test are handled differently than cases where the driver gave a chemical test result over the legal limit.
A civil refusal case is also begun by an officer filing a sworn report in the case, and the driver is given a notice of suspension/revocation for refusal (Form 4323). However, a driver’s rights and duties to properly request a civil hearing are different for a refusal. To properly request a civil refusal hearing, the driver must file a Petition for Review challenging the refusal, directly to the circuit court of the county of arrest within thirty (30) days of the date of arrest. If the driver fails to file the petition within this timeframe, his or her revocation for refusal is final. Romans v. Dir. of Revenue, 783 S.W.2d 894 (Mo. banc 1990).
The relevant issues in a refusal hearing are: whether the subject was arrested (or stopped if under age 21) upon probable cause; whether the officer had reasonable grounds to believe that the subject was operating a motor vehicle while in an intoxicated condition (or with a BAC of at least .02 if under age 21); and whether the subject refused to submit to the test. As part of the refusal issue, the State must show that a proper implied consent warning was read, and that 20 minutes were given to contact an attorney if the driver asked to speak with counsel.
Rules Governing Administration/Admissibility of Chemical Tests:
Breath Test: Chemical tests in Missouri must be performed in accordance with Missouri Department of Health Regulations 19 CSR 25-30.011-30.080. To lay a proper foundation for a breath test in a Missouri DWI trial, the State must be prepared to show that the chemical test was administered by an officer holding a valid Type II or Type III permit issued by the Department of Health, that the chemical testing machine was approved by the Department of Health, that the chemical test was administered in accordance with the guidelines established by the Department of Health, and that a maintenance test had been performed on the breath testing machine by a Type II permit holder within 35 days preceding the chemical test. Tidwell v. Dir. of Revenue, 931 S.W.2d 488 (Mo. App. S.D. 1996).
Blood Test: There are both Missouri statutes and Missouri Department of Health regulations regarding blood draws in Missouri DWI cases. Missouri Department of Health Regulation 19 CSR 25-30.070(1) requires that “(b)lood samples shall be taken in accordance with the provisions of §577.029, RSMo. §577.029 provides that:
“A licensed physician, registered nurse, or trained medical technician, acting at the request and direction of the law enforcement officer, shall withdraw blood for the purpose of determining the alcohol content of the blood, unless such medical personnel, in his or her good faith medical judgment, believes such procedure would endanger the life or health of the person in custody. Blood may be withdrawn only by such medical personnel, but such restriction shall not apply to the taking of a breath test, a saliva specimen, or a urine specimen. In withdrawing blood for the purpose of determining the alcohol content thereof, only a previously unused and sterile needle and sterile vessel shall be utilized and the withdrawal shall otherwise be in strict accord with accepted medical practices. Upon the request of the person who is tested, full information concerning the test taken at the direction of the law enforcement officer shall be made available to him or her.”
Strict Compliance: The State has the burden of proving absolute and literal compliance with the provisions of §577.029, RSMo before a blood test result may be admitted into evidence. State v. Setter, 763 S.W.2d 228, 230 (Mo. App. 1988). Furthermore, “(r)ules of a state administrative agency which have been duly promulgated pursuant to proper delegated authority have the full force and effect of law.” Woodall v. Dir. of Revenue, 795 S.W.2d 419 (Mo. App. 1980). “Missouri courts have previously determined that the state must demonstrate absolute and literal compliance with statutory provisions contained in Chapter 577 regulating the manner in which blood alcohol tests are administered prerequisite to introducing the test results into evidence. See Setter, supra. These statutory enactments serve as a substitute for the common law foundation for the introduction of evidence of analysis for blood alcohol, and are mandatory. State v. Peters, 729 S.W.2d 243, 245 (Mo. App. 1987). Similarly, where the Missouri Department of Health has enacted regulations concerning the proper methods of conducting blood alcohol tests as authorized by Chapter 577, including urine analysis, the State must demonstrate absolute and literal compliance with these regulations prerequisite to introducing the test results into evidence. State v. Regalado, 806 S.W.2d 86, 88 (Mo. App. 1991).
Expungement of DWI/BAC Conviction
Missouri law allows for the expungement of a first alcohol-related offense or administrative action from a person’s driving record. §577.054, RSMo sets out the conditions in which a person is entitled to an expungement. §577.054 states as follows:
“After a period of not less than ten years, an individual who has pleaded guilty or has been convicted for a first alcohol-related driving offense which is a misdemeanor or a county or city ordinance violation and which is not a conviction for driving a commercial motor vehicle while under the influence of alcohol and who since such date has not been convicted of any other alcohol-related driving offense may apply to the court in which he or she pled guilty or was sentenced for an order to expunge from all official records all recordations of his or her arrest, plea, trial or conviction. If the court determines, after hearing, that such person has not been convicted of any subsequent alcohol-related driving offense, has no other subsequent alcohol-related enforcement contacts as defined in section 302.525, RSMo, and has no other alcohol-related driving charges or alcohol-related enforcement actions pending at the time of the hearing on the application, the court shall enter an order of expungement.”
The individual is entitled to expunge not only a conviction, but also a guilty plea where the result was a suspended imposition of sentence. Further, if it is requested in the petition, the administrative suspension/revocation or chemical refusal revocation associated with the arrest can also be expunged from the driver’s record. S.S. v. Dir. of Revenue, 289 S.W.3d 797 (Mo. App. E.D. 2009). An individual is only entitled to one expungement under the provisions of the statute and the statute does not apply to any individual who has been issued or is required to possess a commercial driver’s license.