DWI? NEVER SUBMIT TO THE BREATH TEST AGAIN! (MAYBE)
Updated: May 26
I've previously written on this topic, but the Missouri Department of Revenue rules have changed, so let's talk about it. Previously, if you refused a breath test, you were typically looking at losing your license for a year unless you won a petition for judicial review. That is a civil hearing (can be expensive) and difficult to win.
Forget about all that. My advice now is to never again submit to a breathalyzer. It doesn't matter if it's your first DWI or your seventh. Why? Because there is no longer a mandatory suspension period on a refusal. Yes, it's true. You can immediately apply for a limited driving privilege (which is a simple document you fax or mail to the DOR) once you obtain SR-22 insurance and install an ignition interlock device. While that part isn't free, you are guaranteed the ability to drive to work, pick up your kids, go to the grocery store and attend SATOP classes. (There are more options than I've named - you can even fill in a specific place of your choosing on the form) You can find it on the DOR website - Form 4595.
CAVEAT: If you have been found guilty of a felony DWI, you are not eligible for a limited driving privilege for three years. Is that a stupid law? Yes, it is. Because in rural Missouri, everyone has to drive.
Why is this such a big deal? Because it often makes your criminal case much easier to win. Juries (and judges) pay close attention to breathalyzer results. If your client blows .08% or above, the case is much harder to win. If you don't submit to the test, the state has to rely on circumstantial evidence to win the case. In that case, the officer has to have conducted the field sobriety tests correctly. (I advise you don't do them at all and never admit you have been drinking) Even if you do submit to the tests, the officer often does not conduct them correctly and that can cast doubt on whether you were driving while intoxicated.
Obtaining a limited driving privilege does not prevent you from filing a petition for judicial review. That petition must be filed within thirty days of your arrest and preferably sooner. There can be valid issues where a court might find the officer did not have reasonable grounds to believe you were driving while in an intoxicated condition. If that is the case, the judge may throw out the refusal completely, resulting in no mandatory SATOP (Substance Awareness Traffic Offenders Program) and no more ignition interlock. Obviously, the facts of each case are different.
Now the caveat: If you are stopped for a DWI for the first time and you submit to the breath test, you can also immediately apply for an ignition interlock in your vehicle. The benefit is you can have the interlock removed in as few as three months if you complete SATOP within that time. That saves you from paying the interlock fees for nine additional months. Now, the amount of blood alcohol in your system can cause mandatory jail time in certain circumstances. If you blow between .15% and .20%, you might have to serve 48 hours of jail time. If you blow above .20%, you might have to serve up to five days in jail.
Schuyler is the sole author of this post. Call his office if you have a DWI or license issues related to a DWI.