Summary of Missouri Driving While Intoxicated (DWI) Laws

 What You Need to Know about Drinking and Driving

By Carl M. Ward

My associate attorney Jason Korner and I represent DWI clients in Audrain, Bollinger, Butler, Callaway, Cape Girardeau, Carter, Clark, Cole, Crawford, Dent, Dunkin, Franklin, Gasconade, Iron, Jefferson, Knox, Lewis, Lincoln, Madison, Marion, Marles, Miller, Mississippi, Monroe, Montgomery, New Madrid, Osage, Pemiscot, Perry, Phelps, Pike, Pulaski, Ralls, Reynolds, Ripley, Scotland, Scott, Shannon, Shelby, Stoddard, St. Charles, St. Francois, St. Genevieve, St. Louis, St. Louis City, Warren, Washington, and Wayne County.

If you have been arrested for driving while intoxicated or driving under the influence, we are happy to answer any questions you may have about the DWI criminal process or how to select a DWI lawyer.

We have prepared this summary of Missouri DWI laws to help educate and inform you of your rights. There are links throughout the article to get more detailed information about each subject.

Missouri Implied Consent Laws

In 1964, Missouri passed the state's first "Implied Consent" law. Currently, everyone who operates a motor vehicle in Missouri impliedly consents to giving a blood, breath, saliva, or urine sample to determine the alcohol content of their blood if arrested upon reasonable grounds to believe they were driving a motor vehicle while in an intoxicated or drugged condition. Under the law, the police may require you to take two tests, but rarely do so.

Lawful Stop Not Required

In February of 1999, the Missouri Supreme Court held that the state is not required to prove that the police officer lawfully stopped the motorist in order to suspend or revoke a driver's license. The police in Missouri can now stop anyone, anytime, anywhere they want to, regardless of whether or not they observe the motorist committing a traffic violation. If the police determine that there is reasonable grounds to believe you are driving while intoxicated, and they arrest you, you must submit to a chemical test to determine the alcohol content of your blood. If you test over the legal limit (.08%) or refuse the test, your license will then be suspended or revoked.

What Constitutes Reasonable Grounds

After the police pull you over, they will immediately start to build their case against you by noting certain signs of intoxication, such as the condition of your eyes (watery, glassy, bloodshot) the smell of an alcoholic beverage on your breath, and slurred speech. They will normally ask you if you have been drinking and will then ask you to step out of your vehicle to perform several field sobriety exercises. They will then subjectively score your performance on those exercises and decide whether to arrest you for a DWI. In Missouri, bloodshot eyes, coupled with the odor of booze on the breath, has been found by some courts to constitute "reasonable grounds" for purposes of an administrative license suspension.

Field Sobriety Exercise

The National Highway Traffic Safety Administration (NHTSA) has establish a standardized set of field sobriety "tests" or exercises to assist the police in determining whether or not a driver is driving under the influence of alcohol (DUI). The three tests which they have approved for use in Missouri are the one leg stand, walk and turn, and horizontal gaze nystagmus tests.

The first test to help the police in Missouri determine if you have been driving under the influence or driving while intoxicated is the one leg stand exercise. During the one leg stand exercise, you must be told to hold the foot of your choice approximately 6 inches off the ground in front of you, point your toe forward, keep both legs straight, keep your arms down to your sides, watch your raised foot, and to count out loud by thousands until told to stop.

The second field sobriety test is the walk and turn exercise. During the walk and turn exercise, you must be told to stand in the heel-to-toe position with the right foot in front of the left foot, arms down to the sides, to remain in that position, and not to start the test until told to do so. You must then be told to take 9 heel-to-toe steps down a designated line, and when reaching the 9^th step, leave your lead foot planted, take a series of small steps around to your left, and return 9 heel-to-toe steps back down the designated line. You must be told to count each step out loud, watch your feet while you are walking, keep your arms down to your sides, and not to stop walking until the test is completed. The police officer must demonstrate the test, ask you if you understand the instructions, and then score you on whether or not you: (1) are unable to maintain your balance while listening to instructions, (2) start before the instructions are completed, (3) stop while walking to steady yourself, (4) don't touch your heel to toe, (5) step off the line, (6) use your arms for balance, (7) lose balance while turning or turn improperly, and (8) take the incorrect number of steps.

During the Horizontal Gaze Nystagmus exercise, the police officer must tell you to keep your head still and to follow a stimulus (finger, ink pen, pen light) with your eyes only as the stimulus is passed from side to side in front of your face. The officer must hold the stimulus 12 to 15 inches in front of your nose, with the tip slightly above your eye level.

Improper Administration of Field Sobriety Test

The problem is that police officers in Missouri have inadequate training, and the field sobriety tests are not properly administered. The average police officer learned about the exercises/tests at the police academy, and has had no training since that time. The result is that the required testing conditions and scoring procedures are never learned, or they are forgotten or modified. Police officers have also been known to create their own tests, such as having the subject recite the alphabet backwards, starting from the letter M, and then fail the subject because he or she could not do so. Having to recite the alphabet backward is not a recognized field sobriety test in Missouri.

Right to an Attorney

After you are arrested for a DWI, you will normally be taken to the police station, where you will be asked to take a breath test. In some cities, a blood alcohol testing mobile unit (BATMOBILE) will be dispatched to your location. The police must inform you of the consequences of refusing the test, and if you request it, you must be allowed 20 minutes in which to contact an attorney for advice. You must ask! Know your rights!

Whether you should take the breath test will depend upon your specific circumstances at the time. Many DWI attorneys that practice in this area list their home phone numbers. Contacting a lawyer before rather than after you make a decision can save you from a lot of future trouble.

Right to a Second Test

If you take a breath test at the request of a police officer, and you are unhappy with the test results, under state law, you have the right to a second test done at your own expense. If you are released right away, go to the hospital for a blood test if you do not believe your breath test is accurate or if it is real close. The problem we are now running into is that many police departments now have a "12 hour hold" policy on all DWI subjects and refuse to release you to a sober driver so that you can go to the hospital for a blood test.

15 Minute Observation Period

Missouri's regulations on blood and breath testing provide that the subject must be "observed for at least 15 minutes" before the breath test. The only guidance the regulations provide is that "No smoking or oral intake of any material during this time; if vomiting occurs, start over with the 15 minute observation period." The purpose of an observation period is to make sure that you do not do something that could contaminate the breath sample. Missouri's regulations do not require the police to watch you carefully to make sure that you do not regurgitate, belch, or burp up alcohol from your stomach, all of which can adversely affect the breath test result.

The Breath Test

To conduct the breath test, Missouri uses breath analyzer machines to measure the amount of alcohol in a person's system. One problem is that numerous other compounds which may be present on the human breath also may make the machine mistakenly believe that it is measuring alcohol when it is really measuring some other substance.

Under the current Missouri Department of Health ("DOH") regulations, the police only need to do a calibration or accuracy check of the breath test machine every 35 days. There are a number of problems with Missouri's calibration procedure. First, the temperature of the machine itself varies, affecting test results. Second, body temperatures vary, affecting test results. Third, even though the manufacturers acknowledge that the "most critical link in the simulation process is the simulator," the Missouri Department of Health hasn't bothered to adopt any regulations regarding the calibration, maintenance and cleaning of the simulator and its component parts.

Administrative Hearings

If you take a breath test and your test result is .08% or above (.02 if you are under 21), the police officer will take your driver's license and give you a temporary license and a hearing request form. The hearing request form must be completed, mailed and postmarked within 15 days of your arrest. After your hearing request is received, you will then be notified of the date, time and location of your hearing. The sole issues at the hearing will be whether there was probable cause to believe you were driving while intoxicated and whether your blood alcohol content was unlawful. If you are a minor, and your blood alcohol content was below .08%, the lawfulness of your initial stop will be an issue in the case as well.

If the administrative hearing officer rules against you, your license suspension or revocation will go into effect. While you have the right to file an appeal of the decision to the circuit court in the county of your arrest, the legislature has prohibited the courts from staying the suspension or revocation pending the outcome of that trial. Normally, you will have already served all or part of your suspension before your case gets to trial.

Trial De Novo

To contest the decision of the administrative hearing, you must file an appeal in the circuit court of your arrest within 15 days of the date the hearing examiner mailed the decision to you. The issues are the same as in the administrative hearing, and the Director has the burden of proof. You should always consult with an attorney before giving testimony in either the administrative hearing or trial de novo. A charge of driving while intoxicated and driving under the influence are serious situations and it is advisable to hire a lawyer who specializes in DWI and DUI cases.

Length of Suspension or Revocation for Testing Over the Limit

If you have not had any previous alcohol-related convictions or suspensions in the five year period preceding your current arrest, the suspension period will be 30 days, during which you are not allowed to drive at all, followed by a 60 day period when you may drive only in connection with your occupation or employment. If you have a previous DWI or BAC conviction, administrative alcohol suspension or chemical refusal on your driving record within the past five years, the revocation period will be for one year, and you will not be eligible for a hardship privilege.

Consequences for Refusing the Breath or Blood Test

After you have been arrested, the officer must advise you that the consequences of refusing the test are: (a) your refusal to submit to a test may be used against you in a criminal prosecution; and (b) that your license will be immediately revoked for one year if you refuse. If you then refuse the test, the officer will serve you with a refusal notice. You then have 30 days from the date of your arrest to file a petition for review in the circuit court of the county of your arrest, although the revocation will go into effect after 15 days unless otherwise stayed. The circuit court can and normally will grant a stay order pending a trial before a traffic court commissioner or judge in a refusal case, depending on your driving history.

The issues are whether or not there was probable cause to believe your were operating a motor vehicle while in an intoxicated condition; whether you were arrested; and whether you were informed of your Implied Consent warnings and then refused to take the breath or blood test. The Director has the burden of proof on all issues.

If you have not previously refused a breath test, and you are otherwise eligible, you may be able to obtain a hardship driving privilege to drive in connection with your employment after you have served the first 90 days of your revocation. This is true even if you have had a previous alcohol conviction or administrative suspension within the previous five years. In other words, if this is your second arrest within five years, and you have a previous administrative suspension or alcohol conviction (but not a refusal) on your record, if you take the test and fail, you will be revoked for a year and you will not be eligible for a hardship driving privilege. If you refuse the test, you will be revoked for a year but you may be eligible for a hardship privilege after 90 days.

5 and 10 Year License Denials

Any person who receives two convictions for driving while intoxicated in a five-year period will have their license revoked and they are not eligible for reinstatement for a period of five years. Any person who receives three or more convictions for any combination of DWI or BAC (operating a motor vehicle with a blood alcohol content of .08% or more) within a life time will have their license revoked and they are not eligible for the return of the license for a minimum of 10 years. On a five-year denial, the driver may apply for a hardship privilege after two years, provided that neither of the convictions were felonies, and provided that the driver is not otherwise ineligible because of having twice refused the breath or blood test, etc. On a ten-year denial, the driver may apply for a hardship privilege after three years, with the same exceptions as above.

Points for Alcohol-Related Traffic Convictions

In Missouri, a conviction for a DWI or BAC will result in the imposition of 8 penalty points on your driver's license if you haven't had any previous alcohol- related convictions and 12 points if you have prior convictions. Any felony conviction resulting from the use of a motor vehicle (manslaughter, vehicular assault) will result in the imposition of 12 penalty points. A 30-day suspension followed by a 60-day period of restricted driving privileges will result from a first DWI or BAC conviction. A one-year revocation will result from a felony conviction arising out of the operation of the motor vehicle or for a second conviction for a DWI or BAC.

Mandatory Education and Counseling Programs

As a condition of probation in any Missouri DWI or BAC case, the judge is required to order the driver to complete the Substance Abuse Traffic Offender Program (SATOP). The driver is also required under state law to complete the program as a condition of the return or issuance of a driver's license after an administrative DWI suspension or revocation, or a point suspension or revocation resulting from an alcohol-related traffic conviction. The program consists of three levels. The first level is the offender education class or program (OEP) which is generally reserved for first time offenders whose BAC reading was .17 or less. The second level is the Weekend Intervention Program (WIP) which is for persons with drinking problems, one prior offense, or whose BAC readings are in excess of .17. The third and highest level is the Clinical Intervention Program (CIP) which is for persons with drinking problems, two prior offenses, or with very high BAC readings (.20 or above).

Insurance (SR-22) Requirements

In order to reinstate your license after an administrative DWI suspension or revocation, or a point suspension or revocation resulting from a alcohol-related traffic conviction, the offender is required to maintain a proof of insurance with the Department of Revenue for a period of two years from the effective date of the suspension.

Vehicle Ignition Interlock Devices

If you plead guilty to or are found guilty of a first offense DWI or BAC, the court may order you to install an ignition interlock on your car as a condition of probation. You must blow into this device to start your car, and periodically while driving. If the device detects alcohol on your breath, the car will not start, a record of that fact will be made, and the judge will be notified. In Missouri, if you plead guilty to or are found guilty of a second or subsequent DWI or BAC, the judge must order you to install the device on your vehicle.

Parting Observations

Ten years from now, I am convinced that scholars will look back at this time in our history and conclude that the turning point for the erosion of our constitutional rights began with DWI and drug cases. Drugs and drunk driving are big problems, and nobody, including me, would condone them. I, too, have lost close friends and relatives in drunk driving accidents and to drugs.

What we can't do is overreact to these problems. We cannot trade our basic civil liberties for public security. There is a line that cannot be crossed, but we have now crossed it. As a result of the hysteria and the public outcry, we have bastardized long-standing rules of evidence, good science, and the Bill of Rights in exchange for the expedient removal of drunk drivers from the highways. Yet, we do nothing to educate the public about how alcohol may affect their ability to operate a motor vehicle before they come to the lawyer's office with their first DWI. Many times, they just didn't know how much alcohol they could drink given their body weight. Many of my clients are 100 lb. women, who by drinking two glasses of wine will raise their blood alcohol level to at or above the legal limit. Many are young people, who are inexperienced drinkers. Most are just people who don't know how many is too many. They tell me if they had known they wouldn't have had that last beer, that "one for the road." Has anyone ever thought to include alcohol education in the high school curriculum? Has anyone thought to include an alcohol consumption chart in the state's driver's license manual so that people will at least have an idea how much they can and can't drink? Some states have. Why is Missouri always last? Don't Drive Drunk commercials are great, but how does one know how much he or she can drink?

As an attorney, and as an American, I will do everything within my power to defend the Constitution from the oppression of the masses. With my last dying breath, I will fight the Department of Health's "junk science," the legislature's Draconian rules of evidence, and the attempts of judges to take away our civil liberties. We have the scientific means, but not the will, to improve a system where the innocent may be convicted, and the guilty can go free. Yes, this will be the turning point for the Bill of Rights. As a wise judge once so eloquently said:

"Carnage on the highways, and all other crimes, are subservient to the carnage at Valley Forge, Yorktown, and Gettysburg, where the civil liberties now hanging in the balance were carefully shaped and hammered into rights so clean and so pure that they stand the test of time and resist encroachment."

Hon. Jim Randall,

McDonnell v. Com'r of Public Safety,

460 N.W.2d 363 (Minn. App. 1991)

Wake up Missouri, before it's too late!

Please click on one of the following links to get more detailed information about: Reasonable Grounds and Field Sobriety Exercises / Your Right to an Attorney and Your Right to a Second Test / The Breath Test / Administrative Hearing and Trials De Novo / Consequences for Refusing to take the Breath or Blood Test / Mandatory Education and Counseling Programs, Driver Insurance Requirements, Ignition Interlock Devices