Michael Selby:
Driving while intoxicated
Revised Statutes of
Missouri, Section 577.010 (RSMo. 577.010) is the basic DWI law in
Missouri. It provides that it is a crime to operate a motor
vehicle in an intoxicated or drugged condition. RSMo. 577.023
provides the enhancement penalties for repeat DWI
charges.
Driving with excessive blood alcohol
content
577.012. 1. A person commits the
crime of "driving with excessive blood alcohol content" if such
person operates a motor vehicle in this state with eight-hundredths
of one percent or more by weight of alcohol in such person's blood.
2. As used in this
section, percent by weight of alcohol in the blood shall be based
upon grams of alcohol per one hundred milliliters of blood or two
hundred ten liters of breath and may be shown by chemical analysis
of the person's blood, breath, saliva or urine. For the purposes of
determining the alcoholic content of a person's blood under this
section, the test shall be conducted in accordance with the
provisions of sections 577.020 to 577.041.
3. For the first offense,
driving with excessive blood alcohol content is a class B
misdemeanor.
INFORMATION ABOUT
MULTIPLE CONVICTIONS
Revised Statutes of Missouri Section
577.023 govern multiple arrests and convictions of DWI.
The offenses are broken up as explained below. First,
however, it is important to understand what an "intoxicated-related
traffic offense" is.
An "intoxication-related traffic
offense" is driving while intoxicated, driving with excessive blood
alcohol content, involuntary manslaughter pursuant to subdivision
(2) of subsection 1 of section 565.024, RSMo, assault in the second
degree pursuant to subdivision (4) of subsection 1 of section
565.060, RSMo, assault of a law enforcement officer in the second
degree pursuant to subdivision (3) of subsection 1 of section
565.082, RSMo, or driving under the influence of alcohol or drugs in
violation of state law or a county or municipal ordinance, where the
judge in such case was an attorney and the defendant was represented
by or waived the right to an attorney in writing;
PRIOR
OFFENDER - A prior offender is a person who is
charged with DWI now, and has one prior intoxicated-related traffic
offense within the past five years. So if you are
charged with a DWI now, and have one DWI conviction within the past
five years, you will likely be charged as a prior
offender.
A person convicted of as a
prior offender is guilty of a Class A Misdemeanor, and faces
imprisonment of 1 day to 1 year in jail, plus fines. If a
plea agreement is reached it must include either 5 days
imprisonment, or 30 days community service.
PERSISTENT
OFFENDER - A persistent offender is a person who is
charged with DWI now, and has two or more prior
intoxicated-related traffic offenses ever. So if
you are charged with a DWI now, and have two or more DWI convictions
ever, you will likely be charged as a persistent
offender.
A person convicted as a
persistent offender is guilty of a Class D felony, and faces
imprisonment of one to four years, plus fines. If a plea
agreement is reached it must include 10 days imprisonment or 60 days
of community service.
AGGRAVATED
OFFENDER - An aggravated offender is a person who is
charged with a DWI now, and has three or more offenses ever, or who
has one prior intoxicated-related traffic offense and has a
conviction for:
- Involuntary manslaughter
- Second degree murder where the
underlying felony was an intoxicated-related traffic
offense
- Second degree assault
- Second degree assault on a law
enforcement officer.
So if you are charged with
a DWI now, and you have three or more DWI convictions, you will
likely be charged as an aggravated offender.
A person convicted as an
aggravated offender is guilty of a Class C Felony, and faces
imprisonment of one to seven years, plus fines. If a plea
agreement is reached it must include 60 days
imprisonment.
CHRONIC
OFFENDER - A chronic offender is a person with four
or more intoxicated-related traffic offenses, or who has two prior
intoxicated-related traffic offenses and has a conviction
for:
- Involuntary manslaughter
- Second degree murder where the
underlying felony was an intoxicated-related traffic
offense
- Second degree assault
- Second degree assault on a law
enforcement officer.
A person convicted as a chronic offender is guilty of
a Class B Felony, and faces imprisonment of five to fifteen years,
plus fines. If a plea agreement is reached it must include 2
years imprisonment.
302.500. As
used in sections 302.500 to 302.540, the following terms
mean:
(1) "Alcohol
concentration", the amount of alcohol in a person's blood at the
time of the act alleged as shown by chemical analysis of the
person's blood, breath, saliva or urine;
(2) "Department", the
department of revenue of the state of Missouri;
(3) "Director", the
director of the department of revenue or his authorized
representative;
(4) "Driver's license" or
"license", a license, permit, or privilege to drive a motor vehicle
issued under or granted by the laws of this state. The term includes
any temporary license or instruction permit, any nonresident
operating privilege, and the privilege of any person to drive a
motor vehicle whether or not the person holds a valid license;
(5) "Revocation", the
termination by formal action of the department of a person's
license. A revoked license is not subject to renewal or restoration
except that an application for a new license may be presented and
acted upon by the department after the expiration of the revocation
period;
(6) "State", a state,
territory, or possession of the United States, the District of
Columbia, the Commonwealth of Puerto Rico, and any province of
Canada;
(7) "Suspension", the
temporary withdrawal by formal action of the department of a
person's license. The suspension shall be for a period specifically
designated by the department pursuant to the provisions of sections
302.500 to 302.540.
Reinstatement of
license
302.540. 1. No
person who has had a license to operate a motor vehicle suspended or
revoked under the provisions of sections 302.500 to 302.540 shall
have that license reinstated until such person has participated in
and successfully completed a substance abuse traffic offender
program defined in section 302.010, or a program determined to be
comparable by the department of mental health. Assignment
recommendations, based upon the needs assessment as described in
subdivision (22) of section 302.010, shall be delivered in writing
to the person with written notice that the person is entitled to
have such assignment recommendations reviewed by the court if the
person objects to the recommendations. The person may file a motion
in the associate division of the circuit court of the county in
which such assignment was given, on a printed form provided by the
state courts administrator, to have the court hear and determine
such motion pursuant to the provisions of chapter 517, RSMo. The
motion shall name the person or entity making the needs assessment
as the respondent and a copy of the motion shall be served upon the
respondent in any manner allowed by law. Upon hearing the motion,
the court may modify or waive any assignment recommendation that the
court determines to be unwarranted based upon a review of the needs
assessment, the person's driving record, the circumstances
surrounding the offense, and the likelihood of the person committing
a like offense in the future, except that the court may modify but
may not waive the assignment to an education or rehabilitation
program of a person determined to be a prior or persistent offender
as defined in section 577.023, RSMo, or of a person determined to
have operated a motor vehicle with fifteen-hundredths of one percent
or more by weight in such person's blood. Compliance with the court
determination of the motion shall satisfy the provisions of this
section for the purpose of reinstating such person's license to
operate a motor vehicle. The respondent's personal appearance at any
hearing conducted pursuant to this subsection shall not be necessary
unless directed by the court.
2. The fees
for the program authorized in subsection 1 of this section, or a
portion thereof to be determined by the division of alcohol and drug
abuse of the department of mental health, shall be paid by the
person enrolled in the program. Any person who is enrolled in the
program shall pay, in addition to any fee charged for the program, a
supplemental fee to be determined by the department of mental health
for the purposes of funding the substance abuse traffic offender
program defined in section 302.010 and section 577.001, RSMo, or a
program determined to be comparable by the department of mental
health. The administrator of the program shall remit to the division
of alcohol and drug abuse of the department of mental health on or
before the fifteenth day of each month the supplemental fee for all
persons enrolled in the program, less two percent for administrative
costs. Interest shall be charged on any unpaid balance of the
supplemental fees due the division of alcohol and drug abuse
pursuant to this section and shall accrue at a rate not to exceed
the annual rate established pursuant to the provision of section
32.065, RSMo, plus three percentage points. The supplemental fees
and any interest received by the department of mental health
pursuant to this section shall be deposited in the mental health
earnings fund which is created in section 630.053, RSMo.
3. Any administrator who
fails to remit to the division of alcohol and drug abuse of the
department of mental health the supplemental fees and interest for
all persons enrolled in the program pursuant to this section shall
be subject to a penalty equal to the amount of interest accrued on
the supplemental fees due the division pursuant to this section. If
the supplemental fees, interest, and penalties are not remitted to
the division of alcohol and drug abuse of the department of mental
health within six months of the due date, the attorney general of
the state of Missouri shall initiate appropriate action of the
collection of said fees and interest accrued. The court shall assess
attorney fees and court costs against any delinquent program.
4. Court-ordered
participation in a substance abuse traffic offender program,
pursuant to section 577.049, RSMo, shall satisfy the requirements of
this section if the court action arose out of the same occurrence
that resulted in a person's license being administratively suspended
or revoked.
5. The division of
alcohol and drug abuse of the department of mental health may create
a treatment demonstration project within existing appropriations and
shall develop and certify a program to provide education or
rehabilitation services for individuals determined by the division
to be serious or repeat offenders. The program shall qualify as a
substance abuse traffic offender program. As used in this
subsection, a "serious or repeat offender" is one who was determined
to have a blood alcohol content of fifteen-hundredths of one percent
or more by weight while operating a motor vehicle or a prior or
persistent offender as defined in section 577.023, RSMo.
Refusal to submit to chemical test
577.041. 1. If a person under
arrest, or who has been stopped pursuant to subdivision (2) or (3)
of subsection 1 of section 577.020, refuses upon the request of the
officer to submit to any test allowed pursuant to section 577.020,
then none shall be given and evidence of the refusal shall be
admissible in a proceeding pursuant to section 565.024 or 565.060,
RSMo, or section 577.010 or 577.012. The request of the officer
shall include the reasons of the officer for requesting the person
to submit to a test and also shall inform the person that evidence
of refusal to take the test may be used against such person and that
the person's license shall be immediately revoked upon refusal to
take the test. If a person when requested to submit to any test
allowed pursuant to section 577.020 requests to speak to an
attorney, the person shall be granted twenty minutes in which to
attempt to contact an attorney. If upon the completion of the
twenty-minute period the person continues to refuse to submit to any
test, it shall be deemed a refusal. In this event, the officer
shall, on behalf of the director of revenue, serve the notice of
license revocation personally upon the person and shall take
possession of any license to operate a motor vehicle issued by this
state which is held by that person. The officer shall issue a
temporary permit, on behalf of the director of revenue, which is
valid for fifteen days and shall also give the person a notice of
such person's right to file a petition for review to contest the
license revocation.
2. The officer shall make
a sworn report to the director of revenue, which shall include the
following:
(1) That the officer has:
(a) Reasonable grounds to
believe that the arrested person was driving a motor vehicle while
in an intoxicated or drugged condition; or
(b) Reasonable grounds to
believe that the person stopped, being under the age of twenty-one
years, was driving a motor vehicle with a blood alcohol content of
two-hundredths of one percent or more by weight; or
(c) Reasonable grounds to
believe that the person stopped, being under the age of twenty-one
years, was committing a violation of the traffic laws of the state,
or political subdivision of the state, and such officer has
reasonable grounds to believe, after making such stop, that the
person had a blood alcohol content of two-hundredths of one percent
or greater;
(2) That the person
refused to submit to a chemical test;
(3) Whether the officer
secured the license to operate a motor vehicle of the person;
(4) Whether the officer
issued a fifteen-day temporary permit;
(5) Copies of the notice
of revocation, the fifteen-day temporary permit and the notice of
the right to file a petition for review, which notices and permit
may be combined in one document; and
(6) Any license to
operate a motor vehicle which the officer has taken into possession.
3. Upon receipt of the
officer's report, the director shall revoke the license of the
person refusing to take the test for a period of one year; or if the
person is a nonresident, such person's operating permit or privilege
shall be revoked for one year; or if the person is a resident
without a license or permit to operate a motor vehicle in this
state, an order shall be issued denying the person the issuance of a
license or permit for a period of one year.
4. If a person's license
has been revoked because of the person's refusal to submit to a
chemical test, such person may petition for a hearing before a
circuit or associate circuit court in the county in which the arrest
or stop occurred. The person may request such court to issue an
order staying the revocation until such time as the petition for
review can be heard. If the court, in its discretion, grants such
stay, it shall enter the order upon a form prescribed by the
director of revenue and shall send a copy of such order to the
director. Such order shall serve as proof of the privilege to
operate a motor vehicle in this state and the director shall
maintain possession of the person's license to operate a motor
vehicle until termination of any revocation pursuant to this
section. Upon the person's request the clerk of the court shall
notify the prosecuting attorney of the county and the prosecutor
shall appear at the hearing on behalf of the director of revenue. At
the hearing the court shall determine only:
(1) Whether or not the
person was arrested or stopped;
(2) Whether or not the
officer had:
(a) Reasonable grounds to
believe that the person was driving a motor vehicle while in an
intoxicated or drugged condition; or
(b) Reasonable grounds to
believe that the person stopped, being under the age of twenty-one
years, was driving a motor vehicle with a blood alcohol content of
two-hundredths of one percent or more by weight; or
(c) Reasonable grounds to
believe that the person stopped, being under the age of twenty-one
years, was committing a violation of the traffic laws of the state,
or political subdivision of the state, and such officer had
reasonable grounds to believe, after making such stop, that the
person had a blood alcohol content of two-hundredths of one percent
or greater; and
(3) Whether or not the
person refused to submit to the test.
5. If the court
determines any issue not to be in the affirmative, the court shall
order the director to reinstate the license or permit to drive.
6. Requests for review as
provided in this section shall go to the head of the docket of the
court wherein filed.
7. No person who has had
a license to operate a motor vehicle suspended or revoked pursuant
to the provisions of this section shall have that license reinstated
until such person has participated in and successfully completed a
substance abuse traffic offender program defined in section 577.001,
or a program determined to be comparable by the department of mental
health or the court. Assignment recommendations, based upon the
needs assessment as described in subdivision (22) of section
302.010, RSMo, shall be delivered in writing to the person with
written notice that the person is entitled to have such assignment
recommendations reviewed by the court if the person objects to the
recommendations. The person may file a motion in the associate
division of the circuit court of the county in which such assignment
was given, on a printed form provided by the state courts
administrator, to have the court hear and determine such motion
pursuant to the provisions of chapter 517, RSMo. The motion shall
name the person or entity making the needs assessment as the
respondent and a copy of the motion shall be served upon the
respondent in any manner allowed by law. Upon hearing the motion,
the court may modify or waive any assignment recommendation that the
court determines to be unwarranted based upon a review of the needs
assessment, the person's driving record, the circumstances
surrounding the offense, and the likelihood of the person committing
a like offense in the future, except that the court may modify but
may not waive the assignment to an education or rehabilitation
program of a person determined to be a prior or persistent offender
as defined in section 577.023, or of a person determined to have
operated a motor vehicle with fifteen-hundredths of one percent or
more by weight in such person's blood. Compliance with the court
determination of the motion shall satisfy the provisions of this
section for the purpose of reinstating such person's license to
operate a motor vehicle. The respondent's personal appearance at any
hearing conducted pursuant to this subsection shall not be necessary
unless directed by the court.
8. The fees for the
substance abuse traffic offender program, or a portion thereof to be
determined by the division of alcohol and drug abuse of the
department of mental health, shall be paid by the person enrolled in
the program. Any person who is enrolled in the program shall pay, in
addition to any fee charged for the program, a supplemental fee to
be determined by the department of mental health for the purposes of
funding the substance abuse traffic offender program defined in
section 302.010, RSMo, and section 577.001. The administrator of the
program shall remit to the division of alcohol and drug abuse of the
department of mental health on or before the fifteenth day of each
month the supplemental fee for all persons enrolled in the program,
less two percent for administrative costs. Interest shall be charged
on any unpaid balance of the supplemental fees due the division of
alcohol and drug abuse pursuant to this section and shall accrue at
a rate not to exceed the annual rates established pursuant to the
provisions of section 32.065, RSMo, plus three percentage points.
The supplemental fees and any interest received by the department of
mental health pursuant to this section shall be deposited in the
mental health earnings fund which is created in section 630.053,
RSMo.
9. Any
administrator who fails to remit to the division of alcohol and drug
abuse of the department of mental health the supplemental fees and
interest for all persons enrolled in the program pursuant to this
section shall be subject to a penalty equal to the amount of
interest accrued on the supplemental fees due the division pursuant
to this section. If the supplemental fees, interest, and penalties
are not remitted to the division of alcohol and drug abuse of the
department of mental health within six months of the due date, the
attorney general of the state of Missouri shall initiate appropriate
action of the collection of said fees and interest accrued. The
court shall assess attorney fees and court costs against any
delinquent program.
ABUSE &
LOSE (For those under 21 years old)
577.500. 1. A court
of competent jurisdiction shall, upon a plea of guilty, conviction
or finding of guilt, or, if the court is a juvenile court, upon a
finding of fact that the offense was committed by a juvenile,enter
an order suspending or revoking the driving privileges of any person
determined to have committed one of the following offenses and who,
at the time said offense was committed, was under twenty-one years
of age:
(1) Any alcohol related
traffic offense in violation of state law or a county or, beginning
July 1, 1992, municipal ordinance, where the judge in such case was
an attorney and the defendant was represented by or waived the right
to an attorney in writing;
(2) Any offense in
violation of state law or, beginning July 1, 1992, a county or
municipal ordinance, where the judge in such case was an attorney
and the defendant was represented by or waived the right to an
attorney in writing, involving the possession or use of alcohol,
committed while operating a motor vehicle;
(3) Any offense involving
the possession or use of a controlled substance as defined in
chapter 195, RSMo, in violation of the state law or, beginning July
1, 1992, a county or municipal ordinance, where the judge in such
case was an attorney and the defendant was represented by or waived
the right to an attorney in writing;
(4) Any offense involving
the alteration, modification or misrepresentation of a license to
operate a motor vehicle in violation of section 311.328, RSMo;
(5) Any offense in
violation of state law or, beginning July 1, 1992, a county or
municipal ordinance, where the judge in such case was an attorney
and the defendant was represented by or waived the right to an
attorney in writing, involving the possession or use of alcohol for
a second time; except that a determination of guilt or its
equivalent shall have been made for the first offense and both
offenses shall have been committed by the person when the person was
under eighteen years of age.
2. The court shall
require the surrender to it of any license to operate a motor
vehicle then held by any person against whom a court has entered an
order suspending or revoking driving privileges under subsection 1
of this section.
3. The court, if other
than a juvenile court, shall forward to the director of revenue the
order of suspension or revocation of driving privileges and any
licenses acquired under subsection 2 of this section.
4. (1) The court, if a
juvenile court, shall forward to the director of revenue the order
of suspension or revocation of driving privileges and any licenses
acquired under subsection 2 of this section for any person sixteen
years of age or older, the provision of chapter 211, RSMo, to the
contrary notwithstanding.
(2) The court, if a
juvenile court, shall hold the order of suspension or revocation of
driving privileges for any person less than sixteen years of age
until thirty days before the person's sixteenth birthday, at which
time the juvenile court shall forward to the director of revenue the
order of suspension or revocation of driving privileges, the
provision of chapter 211, RSMo, to the contrary notwithstanding.
5.
The period of suspension for a first offense under this section
shall be ninety days. Any second or subsequent offense under this
section shall result in revocation of the offender's driving
privileges for one year.