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

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.