Some breathalyzer results in Missouri could be thrown out.

     There may be issues with some breathalyzer results obtained in Missouri DUI cases prior to January 29, 2014. This is due to a brief change to the state regulations governing how the maintenance of the machines is conducted. This is an issue that you should talk over with your attorney. Breathalyzer results are used to show intoxication in the criminal case. Please keep in mind that even if the results are not allowed to be used in court there could be other evidence of intoxication. A lack of reliable breathalyzer results will be more of an issue in an administrative hearing regarding the DUI license suspension.

     You are welcome to have your attorney call me with any questions, or if you do not yet have an attorney I'd be happy to help you with your DUI or DWI case in Missouri.

Here is a link to a news article by Fox 4 News in Kansas City regarding this issue.

Breathalyzer issue in Missouri DUI cases

What is a Portable Breath Test (PBT) and what is it used for in Missouri?

 Written by: Christopher Yotz

            The Portable Breath Test (PBT) machine is a hand held breath alcohol testing machine carried by police officers. There are many different brands and models used and available. Some models simply give a positive or negative result for alcohol and some attempt to give a BAC % reading. By definition, the PBT is portable and therefore not attached to anything like a vehicle or building nor used solely within either. This portability does not lend accuracy or reliability to the machine for multiple reasons. There is at least one PBT machine that is approved in Missouri for use as an evidentiary breath testing machine but it must be mounted in a specially modified vehicle or building and attached to a printer such that it allegedly lends the machine more reliability.

            The PBT is used in Missouri to attempt to show the presence of alcohol in the test subject’s blood. The test is administered prior to arrest. This alleged presence of alcohol is used to show probable cause for arrest on the charge of DWI. Even if the machine claims to give a BAC % reading, such a reading is not admissible in court to show anything other than the presence or absence of alcohol.

            Additionally, any submission to a PBT test prior to arrest is not counted toward the two evidentiary breath tests the police can demand under the Implied Consent Law. (The number of evidentiary tests allowed will be discussed in another article). The police can ask you to submit to a PBT multiple times prior to arrest. You are not required to submit to any PBT prior to arrest in Missouri. If you refuse to submit to a PBT, this refusal alone is not the one that will suspend your driver’s license for a year. Only a refusal of a legally demanded evidentiary breath, blood or urine test(s) after arrest can suspend your driving privilege.

Kansas City DUI-DWI Expungement

 

Written by: Christopher Yotz

            Missouri does not have very liberal expungement statutes. (See my other blog post on expungements). Convictions that can be expunged in Missouri are very limited. One such conviction that can be expunged is a first DUI-DWI offense. The wait is long and the requirements are strict but if qualified the court is required to grant such an expungement.

            The requirements to qualify for an expungement are:

1.    The conviction to be expunged is in fact a first offense

2.   It has been 10 years from the conviction date

3.   No convictions for any other alcohol related offenses during this term

4.   No alcohol related charges currently pending

5.   The offense to be expunged is not a conviction for DUI-DWI in a commercial motor vehicle. 

            If the expungement is granted the court orders the records sealed and even the record of the expungement must be sealed. However, a record that an expungement occurred can be kept in order to make sure only one such expungement is ever granted as limited by the statute.

            As stated above, the time you have to wait for this expungement is long and the requirements are strict. However, if you qualify under this provision in the Missouri DUI-DWI laws it can certainly help you clear a negative mark from your history.

How can I still lose my license if I’m found not-guilty of DUI or DWI in Missouri?

 

Written by: Christopher Yotz

            As I’ve said in other posts, there are two cases running at the same time when a person is charged with Driving While Intoxicated in Missouri. They are the criminal case charging you with the crime of DUI or DWI and an administrative case solely regarding suspension of your license. In the criminal case the US Constitution applies and in the administrative case not so much. Also, there are different elements that must be proven and different levels of proof in the two cases.

            In the criminal case all the elements of DUI or DWI must be proven and the investigation and prosecution from start to finish must comply with the constitutional limits on criminal prosecutions. If you were to be pulled over in for a traffic stop and arrested for DUI or DWI in violation of your constitutional rights then the prosecutor may not be able to win the criminal case. A possible issue could be the reason for the officer to stop you prior to the investigation for a DUI-DWI arrest. If the officer makes an illegal traffic stop that leads to a DUI-DWI arrest then a DUI-DWI lawyer can contest the criminal charge based on this issue and may be able to get the case dismissed. This is due to an invalid seizure of your person leading to evidence that could be considered unconstitutionally obtained. Also, your guilt must be proven to a neutral judge or jury to the level of beyond a reasonable doubt.

            The administrative license case is a civil matter rather than a criminal case and therefore there are not the same constitutional restrictions, fewer elements that must be proven and the case only has to be proven to the level of preponderance of the evidence. The only two elements in an administrative license suspension for DUI-DWI is 1) whether there was a reasonable basis (same as probable cause) for the DUI-DWI arrest and 2) whether the person tested over .08% BAC (unless you are under age or hold a CDL). The basis for the traffic stop is not an element necessary to be proven in the administrative case. And, the constitution will not prevent illegally obtained evidence to be used in the administrative case in the same way as the criminal case. Based on the example above, if an officer makes an illegal traffic stop leading to probable cause for a DUI-DWI arrest the criminal case could be thrown out based on the invalid traffic stop but the administrative suspension could go forward.

            The level of proof necessary in the two cases can cause a difference in outcome as well. The preponderance level of proof used in the administrative case just requires that the evidence shows the person arrested was more likely to have been intoxicated as not. This means 51% more likely than not. However, in the criminal case the prosecutor has to prove beyond a reasonable doubt that the person was Driving While Intoxicated. Beyond a reasonable doubt is much more than just 51% as likely. Based on this you can probably see how a case could fit in between the two levels of proof such that it doesn’t quite make it to the level of beyond a reasonable doubt but still be more likely than not.

            As you can see, it is possible to lose your license after a DUI-DWI arrest even if you are not found guilty of the criminal charge of DUI-DWI. This does not happen very often but it occurs often enough. The situation is difficult enough to understand that I thought this post would be worthwhile. I will also try and post information on how the administrative system is very different than the court system soon.

Possible issues with your license if you are charged with a DWI in Missouri.

Written by: Christopher Yotz

            If you are charged with a DWI in Missouri for the first time you may not realize how complicated the issues may be with your license. There are two ways you can potentially lose your license. It may be administratively suspended or it could be suspended for points or for both.

            Your license may be at risk for a reason separate from the criminal charge for Driving While Intoxicated even if the criminal charge is never filed or it is dismissed. After you are arrested the officer will request that you submit to a chemical test of either your breath or blood. You can either agree or refuse. (I will discuss what I think about testing or refusing in another post). Either situation could lead to an administrative suspension. The length of the administrative suspension will vary depending upon whether you choose to submit to the test.

            If you agree to the test and test over .08% BAC then the officer will send a form to the Missouri Department of Revenue and ask that your license be suspended for testing over the limit. Such a suspension for a first offense will be for 90 days. Prior to the new law taking effect you would be eligible for a limited driving privilege after 30 days and after filing SR-22 insurance. Under the new law such a wait will be shorter if you agree to install an Ignition Interlock Device on your vehicle.

            If you refuse to take the test (simply not taking the test for whatever reason can be claimed a refusal) the officer will still send a form to the State of Missouri asking that your license be suspended. This suspension will be for 1 year. You may be eligible for a limited driving privilege after 90 days. Under the new laws this could be shorter.

            You can contest either of the above suspensions. If you submitted to the test then you have 15 days to file for an administrative hearing to contest this suspension. If the officer claims you refused to submit to the test then you have 30 days to file a civil action in the county court to contest the suspension.

            In either case, the officer should give you a form stating that you have a 15 day permit to drive (assuming you are otherwise eligible to drive). If the administrative hearing is requested or civil action filed then this temporary driving privilege may be extended.

            After all of the above, you could also have your privilege to drive suspended if you are convicted for Driving While Intoxicated in Missouri. If you are convicted the Missouri Department of Revenue will assess 8 points to your driving privilege for a first offense and 12 points if you have been previously convicted.

            There are short time periods involved with a license suspension due to DWI. To be safe you should plan on hiring an attorney less than 15 days after a DWI arrest. If you wait too long you could lose the ability to fight the administrative suspension.

            I’ve talked to many people over the years who thought that there was no point in hiring an attorney after being arrested for DWI. They thought it would be too expensive and there was no chance of winning. You should know that there is always a chance. Working with a knowledgeable DWI lawyer will give you a much better chance and more options for resolving the case. The best thing to do is consult a DWI attorney and do it early. Like I’ve said before, you don’t have to hire me but hire the best attorney you can afford.

Charged with driving while suspended in Missouri?

Written by: Christopher Yotz

            If you are charged with driving while suspended or revoked in Missouri it is a very serious offense. You may not know that if you are convicted you will receive a new 1 year revocation of your license. This is a big problem here in the Midwest and especially during a bad economy. People need to drive to get to work and other places in a sprawled out area. Without good public transportation they tend to drive anyway legal or not. Then they continue to get caught, charged and suspended over and over again in a seemingly endless loop.

            What you need to do is determine why you are suspended, fix the underlying problem and then resolve the current problem so that you don’t get caught back in the aforementioned loop. The reasons for the underlying suspension may be due to old tickets that are unpaid, accumulation of points or revocations. An attorney can look over your driving record, determine the reason(s) for suspension or revocation and hopefully help you sort those issues so that you can get your license reinstated. Having your license reinstated can go a long way toward resolving a charge for driving while suspended. However, you will still need an attorney to help with all of this. Just showing up to court with a valid license is not the finish line. There is still work an attorney needs to do with the new charges to keep your newly minted license valid.

            The end goal is to come out of this with a valid license. You need to get out of the constant and costly loop of driving illegally.

First Time DWI or DUI in Missouri

Written by: Christopher Yotz

     If you are charged with DWI/DUI for the first time ever in Missouri hire an attorney as quickly as possible. I know this sounds self serving but it is for your own good. There are two cases occurring simultaneously around a charge for DWI, the criminal case where the state claims that you committed the crime of Driving While Intoxicated and the civil administrative case that involves your ability to drive in Missouri. A DWI/DUI can automatically suspend your license without regard to what may occur in the criminal case. Such a suspension happens quickly and often before you ever appear in court on the criminal case. This is why you need to hire a lawyer quickly.

     If you are charged with Driving While Intoxicated due to alcohol and you voluntarily gave a valid breath or blood sample you will only have 15 days to file a request for hearing to contest the administrative suspension of your license. During that first 15 days you should continue to be legally allowed to drive if you are otherwise eligible. If you have not made a valid request for a hearing to contest your administrative suspension within that 15 day window then your license will automatically be suspended for 90 days and you will not be able to contest the suspension. If you have made a valid request for the administrative hearing on your license suspension then your ability to drive should continue until after the hearing has occurred. Again, this happens only if you are otherwise eligible.

     If the arresting officer claims that you refused to give a valid breath or blood sample then you may be looking at a 1 year suspension of your license. In this case you must file a civil law suit in the county where you were arrested. This suit is filed against the Missouri Department of Revenue and requests that the court order the Department to reinstate your license. You have 30 days to file this suit but just like above you only have a temporary 15 day permit to drive after being arrested for DWI/DUI. Therefore, if you don’t file this suit within 15 days of being arrested then you would not be legally allowed to drive unless or until something else happens to get that privilege back. An attorney may be able to get you a continued temporary permit to drive as part of this civil suit that may last until the final hearing on this case occurs.

     If you are suspended for one of the reasons above then at some point you may be eligible for some form of limited privilege to drive. This topic will likely be covered more later in this blog. This is something to discuss with your attorney if you find yourself being administratively suspended for DWI/DUI.

*I realize after re-reading this post that it is very dry. This is an unfortunate byproduct of writing about legal issues. Dry begets dry.