For many individuals, one of the biggest hardships resulting from a DWI charge, is the loss of driving privilege. The suspension or revocation of a person's license can occur in a variety of different ways; and in many cases, a person may be suspended or revoked for more than one reason at the same time. Before describing each of the different types of suspensions, it is important to also understand Missouri's Implied Consent Law.
IMPLIED CONSENT LAW: Under 577.020 RSMo. Any person who operates a motor vehicle upon the public highways of this state shall be deemed to have given consent to, subject to the provisions of 577.020 to 577.041, 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. This Statute is commonly known as the Implied Consent Law. The reader should note that consent to the chemical test is implied by statute simply by operating a motor vehicle in this state, where the officer has resonable grounds to believe that the person stopped also has a certain blood alcohol level, or that the person is under the influence of drugs. Consent is not required; but failure to submit to testing will subject the person to a separate Refusal suspension, discussed below. Sound funny, suspicious? It should! You have the right to remain silent. Remember the "Miranda" right. The basic foundations of this right come from the United States Constitution. The specific "Miranda" right itself, comes from the famous case, Miranda VS. Arizona. If you exercise it, there may be certain people who think you are guilty because of your silence, but there is no legal penalty for the exercise of the right to remain silent. And, unless you are talking to your Priest, who I would not trust any more than the cops, it is better than making a confession. So, back to the question. Why are you penalized under the law for exercising your right to refuse the chemical test. The answer is that you are presumed to know the law, or, as is often said, ignorance of the law is no excuse; and pursuant to the Implied Consent law, which you can think of like a contract, you have given your implied consent, to be contractually bound in a sense, to take the chemical test under certain conditions, whenever you operate a Motor vehicle in this state. If you refuse the test, assuming it was a lawful request for you to take it in the first place, then it's like liquidated damages provided for breach of contract, you lose your license. Fortunately, this is America, and you can challenge that too.
1. ADMINISTRATIVE SUSPENSION: The first suspension that a person often faces is called the Administrative Suspension. During a DWI traffic stop, the driver is normally requested to submit to a chemical test. The decision to take the test is a double edged sword. If the driver refuses to test, then he or she may face the potential consequences of a Refusal suspension (see below). If the driver agrees to the test, and fails, then an Administrative suspension will be immediately imposed, starting 15 days from the date of arrest; and, of course, you also just gave the government the evidence to make a prima facia case (legal presumption) of intoxication on the DWI charge. The officer was going to give you that DWI ticket anyway, even if you refused; because the officer has already made his own presumption that you are intoxicated. If it is the first Alcohol enforcement contact within 5 years, the suspension will be for 30 days, followed by a 60 day period where the driver may obtain a Restricted permit (similar to a hardship license). See rules for immediate Hardship (Limited Driving Privilege), under Missouri Statute. If the driver has a prior alcohol enforcement contact within the preceding 5 years, then the Administrative suspension will be for 1 year. Unlike the DWI charge, which is a completely separate criminal prosecution in the Court system, no hearing is offered or given on the Administrative suspension unless the driver makes a written request within a specified time period. A request for hearing must be made in writing within 15 days from the date of arrest.
2. REFUSAL SUSPENSION: Pursuant to the Implied Consent law, as discussed above, a driver who operates a vehicle in the state of Missouri, gives his or her implied consent to take a chemical test under certain specific conditions, which are set forth under Missouri Statute. If the driver refuses to test, then under 577.041 RSMo. a refusal suspension will be imposed. Like the Administrative suspension, the Refusal suspension starts 15 days after the date of arrest; however the Refusal suspension period, even for the first time, is for 1 year. This is a factor that must be taken into consideration when deciding whether or not to take the chemical test. It you take the test, and fail, the Administrative suspension (without any prior alcohol enforcement contacts within the preceding 5 years) is only for 30 days, whereas the Refusal suspension, whether you were really intoxicated under the law or not, is for 1 year. This is only one of many factors which must be considered when deciding whether or not to take the test. Another important point regarding Refusal of the chemical test, is an obscure provision of the Missouri law pertaining to the issuance of Hardship licenses. Several factors may prevent someone from being able to obtain a Hardship license; and refusing a chemical test, more than once, in this State, or any other State, is one of them. Like the Administrative suspension, a Refusal suspension can also be challenged. This is done by filing a Petition for Review, of the Refusal suspension. It must be filed in the Circuit or the Associate Circuit Court of the County in which the arrest or stop occurred. This means that even if the officer files the DWI charge in a Municipal Court, which would be located in a County, any Petition for Review must still be filed in the State court system. Counties are considered part of the State. The time period for filing is limited to 30 days from the date of the arrest.
3. POINT SUSPENSIONS: The Administrative and Refusal suspensions, as discussed above, can occur even without a conviction on the actual DWI offense. This is because they are separate civil penalties, and the foundations for either of them to be upheld does not require a conviction on the separate DWI prosecution. Point suspensions are also separate, and in addition to the Administrative or Refusal suspensions; but only occur if there is a conviction on the DWI offense, or companion offenses, or a combination of both. Companion offenses are things like, Speeding, Failure to signal, Failure to drive in a single lane, etc. These are typically the type of offenses alleged by the officer for the Probable Cause for the stop of the vehicle in the first place; and like the DWI offense, these other offenses that create the Probable Cause for the stop, are generally Point offenses. This means that if you are convicted of the DWI or any of the possible companion offenses (of which most are point violations), that Points will then be assessed against your license by the Missouri Department of Revenue (DOR), and a separate point suspension may result.
Currently, for a first offense DWI or BAC, a conviction will result in 8 points being accumulated against a person's license. It is important to understand that you don't lose points as a result of convictions, you accumulate them. A person with a clean driving record has no points against his or her license. Currently, an accumulation of 8 points (like the number resulting from a first offense DWI) will result in a 30 day point suspension. A second offense DWI or BAC conviction, no matter how old the prior, will cause an accumulation of 12 points, resulting in a 1 year point suspension. Sometimes a person can be suspended for a year for points even on a first offense DWI or BAC, if they are also convicted or plead guilty to the companion offenses. For example, suppose, as is very common the case, that the officer alleges that in addition to driving while intoxicated, you were also speeding, and that you ran a red light. Remember, the officer is always going to try to find some Probable Cause to justify the stop. Instead of just the potential 8 point liability for the first offense DWI, you now have a 12 or more point liability. If you plead guilty or take a conviction on all three offenses, you lose your license for a year. This is a good example of why having qualified experienced counsel, meaning a an experienced DWI Lawyer, representing you, is essential. Even if you had the worst case imaginable as far as the DWI, if all your DWI Attorney did was to ensure that you at least avoided the convictions on the companion offenses, it could make the difference in a 30 day suspension, rather than a 1 year loss of your license. This is also an example of why you should never pay (meaning take the conviction on) even a minor traffic violation, if there is a possibility of getting a DWI Attorney to help you try to avoid the points and/or conviction. It might seem OK to just pay the tickets on a couple of minor traffic violations, like speeding; but even these seemingly minor violations are a factor for Insurance companies in determining the price you are charged for insurance. What happens later, however, is even worse. In addition to the increase in cost for your insurance, suddenly the unexpected serious violation of DWI occurs; and, because of the points already on your license, the risk of losing your license for a year rather than for 30 days becomes much greater. Lastly, the maximum length of suspension for points is currrently 1 year. This means that even if you accumulate more than 12 points, the suspension period, at least for points, is limited to a year.
4. FIVE & TEN YEAR SUSPENSIONS: As if the Administrative, Refusal and Point suspensions were not enough, Missouri law also provides for the revocation of driving privilege based on the number of convictions for DWI or BAC. The law provides that for 2 convictions within 5 years, a 5 year denial (revocation of driving privilege) may be imposed. For 3 or more convictions, subject to certain conditions, a 10 year denial (revocation) may be imposed. Note, that the 5 and 10 year denial (revocations) may in some circumstances overlap an Administrative, Refusal or Point suspension; but they are also completely separate and in addition to all other suspensions and revocations.
Steven F. Groce, Attorney
Offices located in Springfield Missouri. Main Office: 1705 N. Jefferson, Springfield, MO. 65803
South Office: (by appointment only) 1200 E. Woodhurst Drive, Bldg. B, Suite 100, Springfield, MO. 65804