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State of the Law
Under Missouri law, a criminal charge of DWI or excessive b.a.c. often also carries the potential for additional civil penalties, notably the suspension or revocation of the subjects driver license. At the time of arrest for an alcohol related driving offenses in which a blood alcohol result of .08% or higher is obtained, the arresting officer will seize the subject’s driver’s license, and issue a notice of suspension to the driver. Such notice of suspension provides a 15 day grace period before the suspension or revocation becomes effective. If the driver takes no action the suspension will automatically become effective following the 15 day grace period. Such suspension will be for either ninety (90) days or one (1) year depending on the driver’s past driving history. (note: breath test refusal cases have different requirements, and are not discussed in this article)
In order to prevent the above-described license suspension and/or revocation it is imperative that an administrative license hearing is requested within fifteen (15) of the arrest/issuance of notice of suspension. Failure to timely request an administrative hearing will prevent the driver from contesting the suspension at a later time. This administrative hearing request is separate from, and in addition to any criminal proceedings.
Requirements for License Suspension
Department of Revenue license actions are considered to be civil matters, despite often being related to a pending criminal charge of DWI. In order for the driver’s license to be suspended, the Department of Revenue must prove its case by the preponderance of the evidence. This is a different standard of proof than at a criminal hearing, in which guilt must be proven beyond a reasonable doubt. Generally, proof by preponderance of the evidence, means proof that something is more likely to have occurred than not. Another way to think of this standard is that it must be shown that there is a greater than 50% chance that an event occurred.
The elements which must be proven by the Department of Revenue in order to issue a license suspension and/or revocation are as follows:
- The person was placed under arrest;
- There was probable cause that the person was intoxicated; and
- There is a blood or breath test indicating a b.a.c. of .08% or higher.
Notably, unlike in a criminal DWI trial, the Department of Revenue does not need to show that there was probable cause for the initial stop of the driver. There is no requirement that the person has committed a traffic error or other law violation prior to be stopped by law enforcement. (There is a small caveat only concerning persons under age twenty-one. In such instances, the Department of Revenue does need to show that a driving offense was committed).
Defenses at Hearing
There are a number of issues that can be raised at hearing in a administrative alcohol proceeding. Failure of the Department of Revenue to establish even one of the elements stated above will preclude a license suspension action.
As stated above, the subject must actually be under arrest when the blood or breath test was taken. Additionally, this arrest must be based on probable cause that the person was operating a motor vehicle, and that the person was intoxicated. Long periods of time between when a person was driving, and when the first encounter with law enforcement occurs can sometimes prevent proof that, even if the person was previously driving, that they were intoxicated at that specific time.
Often in attempting to demonstrate probable cause, the Department of Revenue will rely on the written report of the arresting officer concerning observations obtained during a standardized field sobriety test (SFST). This battery of tests includes horizontal gaze nystagmus, walk-and-turn, and one-leg-stand tests. During the horizontal gaze nystagmus test, the officer will check each eye of the subject for involuntary shaking (nystagmus). The occurrence of nystagmus may indicate a possibility of intoxication. However, nystagmus can also be caused by physiological effects or outside environments other than the presence of alcohol. Additionally, errors in the administration of the gaze nystamus test can, and do, result in false positives. A full review of the environment in which the test occurred, any medications or legal substances the subject had been in contact with, and the actual administration of the test itself are crucial to determine the accuracy of any result received, and can be grounds to discredit such results at a license suspension hearing.
The walk-and-turn and one-leg-stand tests are both physical tests concerning the subjects motor skills and divided attention. In either test, the presence of two (2) errors, such as failure to maintain balance, stepping off the line, etc, are considered an indication of intoxication. However, as with the gaze nystagmus test discussed above, the reliability of results on these tests depend heavily on proper administration and scoring of the tests by the observing officer. It is not uncommon for an error to be improperly marked. A full review of the administration of these tests is very important. In a majority of cases, it is also possible to request a video of the subjects performance on these tests, which can then be used to refute improper administration of the test or improperly marked errors.
In addition to contesting probable cause based on the standardized field sobriety tests discussed above, it is also very important to review and contest any improper reliance on the blood or breath test providing the .08% or higher b.a.c. result. The Missouri Department of Health and Senior Services maintains regulations concerning the maintenance and operation of blood and breath testing machines within the state of Missouri. These regulations must be strictly complied with in order for a blood or breath test to be admissible for the purposes of license suspension. Testing machines must be maintained every thirty-five (35) days by a Missouri licensed technician; The operator of the machine who collects the subjects blood or breath sample must also be properly licensed; The machine used for the sample must be of a type specifically authorized by the regulation; The samples used to calibrate the machine must be approved by regulation and properly certified; and when maintained the machine must test within specific regulations concerning temperature, spread of results, and more. A full review of the machine, and its history, used to collect a blood or breath sample can be grounds to exclude the b.a.c. result obtained.
Any person aggrieved by a Department of Revenue alcohol license action, may request an appeal to the circuit court within fifteen (15) days of the final decision. In order to request such appeal a petition must be filed in the circuit court for the county of arrest. Additionally, the Department of Revenue must be served with notice of the appeal. If an appeal is requested the court will hold a de novo hearing. This means that the circuit court will hear the evidence, and will review it without deference to the previous Department of Revenue decision. Unlike Department of Revenue hearings, a circuit court appeal will often include live testimony concerning the events leading to the license action.
Unfortunately, however, the decision of the Department of Revenue to issue a suspension or revocation is not stayed while such appeal is pending. This means that the license suspension or revocation may go into effect prior to the appeal hearing taking place. If this occurs, the person is precluded from driving during such suspension period unless/until the court later finds that there was not sufficient evidence for the suspension.
Length of Suspension
If the Department of Revenue determines that all three (3) elements discussed above are proven by the preponderance of the evidence a license suspension will issue. The length of the suspension is determined by the subjects prior driving history. A first alcohol related suspension will be for ninety (90) days. If the person has any prior alcohol related suspensions, a one (1) year license revocation will issue instead of the ninety (90) day suspension. Please also note, that if the criminal case results in a criminal conviction, and such person has prior convictions for DWI or excessive b.a.c. this administrative revocation may be increased by the court to up to ten (10) years dependent on the person’s past conviction record(s).
Restricted and Limited Driving Privilege
A person whose license has been suspended by for an alcohol related offense may be eligible for a restricted or limited driving privilege.
A first suspension for alcohol is ninety (90) days, as discussed above. During this ninety (90) day period the subject may choose one of two different options. Under the first option the person is subject to a thirty (30) day “hard-walk.” During this time, no driving is permissible. Following the hard-walk, a restricted driving privilege for the remainder of the suspension, allowing for driving to and from school, work, etc., may be requested. In order to receive such restricted privilege the only requirement is to file proof of SR-22 insurance with the state. No other written request or application is required. There is no requirement for ignition interlock.
The other option allows the subject to completely avoid the “hard-walk” requirement discussed above, but does require installation of an ignition interlock. Under this option a person is immediately entitled to a restricted driving privilege upon proof of installation of ignition interlock and purchase of SR-22 insurance. Such ignition interlock must be maintained during the entire period of the restricted driving privilege. Under this option, a written request/notice should also be filed with the Department of Revenue.
Persons subject to a one (1) year revocation are eligible for a limited driving privilege following a forty-five (45) day hard walk (no driving). In order to receive this limited driving privilege the subject must maintain ignition interlock, and SR-22 insurance. Additionally, an application for limited driving privilege must be filed. Note: There are different/additional requirements to request a limited driving privilege if a person is subject to a five or ten year license denial.
Reinstatement of Full Driver’s License
Following the completion of the relevant suspension or revocation period, there are a number of steps which must be taken prior to reinstatement/issuance of a full driving privilege, which include:
1. Completion of the Substance Abuse Traffic Offender Program (SATOP)
2. Maintain SR-22 insurance for two (2) years from the initial date of suspension/revocation (except in certain instances concerning minors)
3. If it is a second alcohol suspension, maintain ignition interlock for six (6) months (there is no ignition interlock requirement after reinstatement for a first offense)
4. Retake the driving exam (if it has been more than six months since the suspension began)
5. Pay a reinstatement fee at the DMV
Remember: You have a Constitutional right to the assistance of an attorney to defend against a license suspension! Attorneys at Cline, Braddock & Basinger, are ready to assist you. It is our hope that you find these materials useful. When you are ready contact our offices to schedule a free appointment!