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.

I was stopped by a police officer outside his jurisdiction. Can he do that?

Written by: Christopher Yotz

            The short answer is, yes. However, like almost all of the answers I give on this blog it depends on several factors. An officer in Missouri can leave his jurisdiction and still act as a police officer only while in fresh pursuit.

            The Missouri statute that extends the officer’s jurisdiction while in fresh pursuit is very restrictive. If properly challenged it requires the prosecutor to show the facts necessary to meet the fresh pursuit doctrine or there may be some problems with any evidence obtained outside the jurisdiction.

            The elements the prosecutor must show are:

1.                  Fresh pursuit was initiated inside the officer’s jurisdiction.

2.                 The officer witnessed a criminal act inside the jurisdiction. (This can be as minor as a speeding violation).

3.                 The accused must be attempting to escape or at least have knowledge of pursuit. (I believe the accused has to still be in the jurisdiction when this knowledge is conveyed, but this specific question hasn’t been challenged yet).

4.                  The officer must pursue without undue delay.

5.                  The pursuit must be continuous and uninterrupted.

6.                  There must be a relation in time between the alleged criminal act inside the jurisdiction, beginning of the pursuit and apprehension of the accused.

            Some criminal charges are often, or always, based on evidence obtained after a traffic stop such as DWI, drug possession, drug paraphernalia, driving while suspended, etc. If an officer conducted a stop outside his jurisdiction resulting in these types of charges a criminal defense attorney would probably file a motion to suppress any evidence obtained after the traffic stop. So, tell your attorney if you believe the officer stopped you outside his jurisdiction. This information could be very important and it’s unlikely the officer would write this information in his report, so you need to tell your attorney about it.

            A violation of the fresh pursuit doctrine only invalidates evidence obtained after the officer leaves his jurisdiction. Evidence obtained by the officer while still in his jurisdiction such as speeding could still be admissible in court. Therefore, an officer could pursue someone outside his jurisdiction and simply write a speeding ticket as long as the officer witnessed the defendant speeding inside the jurisdiction. This is probably frowned upon by the officer’s supervisors so it doesn’t happen very often.

            Let’s look at my favorite example of a DWI stop by a Kansas City, Missouri police officer. Here the officer is following a car that he sees weaving between lanes heading east nearing the city limits. The officer continues watching and following the car and just after passing over the city limits of Kansas City he turns on his roof lights and stops the offending driver. He then conducts a DWI investigation which, as it often does, ends with the arrest the offending driver for DWI. The officer then searches the suspect’s car and finds illegal drugs and paraphernalia. In this case, the evidence of the DWI, drug possession and paraphernalia charges may be suppressed due to an improper search. However, the traffic charge of weaving may well be valid as the evidence of this offense was obtained inside the jurisdiction and would be admissible.

Nobody read me my rights when I was stopped or arrested. Now they have to dismiss the case, right?

Written by: Christopher Yotz

            I’ve heard this question several times over the years. I think this may be another myth perpetuated by Hollywood. Just because you did not receive the Miranda Warnings does not mean that the criminal case against you must be dismissed based on that fact alone. However, there may be issues in the case against you that an attorney can use based on this fact which could lead to some evidence being barred from use at trial. If enough, or the right parts, of the evidence is barred then this could lead to a dismissal of some or all of the criminal charges.

            In a brief nutshell, the Miranda Warning is only necessary if: 1. you are arrested, 2. the police question you, and 3. the government wants to use what you say as a result of those questions against you. If any of these factors are missing then the lack of a Miranda Warning may not matter.

            During a DWI stop or other criminal arrest/investigation there are times when you may be under arrest and must have the Miranda Warning read to you before a solicited statement could be used against you. And, there are other times that it isn’t necessary.

            Let’s use my favorite example of a DWI stop here in good ole Kansas City, Missouri. A Kansas City police officer stops you for a traffic violation. When the officer walks up to your window he (I’m going to use the pronoun he but the officer could be a he or a she) asks if you know why he stopped you. An answer to this question could be used against you. The courts believe that at this time you may not be under arrest. Therefore, no Miranda Warning is necessary here.

            We’ll keep going with the example above. Let’s say that the officer decides to put you through the Standardized Field Sobriety Tests. These are the three tests that the NHTSA endorses for officers to use in order to show probable cause for a DWI arrest. (I’ll talk about these tests in another post later). After these tests the officer places you under arrest for DWI. Now, even the courts believe you are under arrest. But, when the officer helps you into the back seat of his car you typically still haven’t received the Miranda Warning. If at this point the officer asks you questions the answers may not be useable in court. However, let’s say you get scared and suddenly blurt out that you are sorry you are so drunk. Since this statement was not solicited by the officer it could be used against you.

            Back at the station after the above DWI arrest example the officer should read you a list of questions about where you’ve been, what you’ve eaten, and what you’ve had to drink, etc. The very first part of this questionnaire is a list of the Miranda Warnings that the officer is required to read to you. At this point all the stars align and we have all three elements above; arrest, questions and (unfortunately) answers.

            Considering all of the above, the short answer to the title of this post is; maybe. A criminal charge might be dismissed due to a lack of the Miranda Warning being given but only as a small part of the complicated whole. This is why you hire a lawyer to take a deep and long look at the case against you. Like I’ve said before on this site; you don’t have to hire me, but hire the best lawyer you can afford. This gives you the best shot at protecting your rights in a criminal case.

Can the police lie to me when asking me questions?

Written by: Christopher Yotz

The short answer is, yes. The police are legally allowed to be untruthful (with very few exceptions) in order to get someone to talk or otherwise give the police what they want.

Like many myths in the law, I blame Hollywood. The movies and television perpetuate so many false legal claims and false results that I’m astounded. But, they keep using these falsehoods and people begin to believe that they are true. Look at it this way; if an undercover officer always had to tell the truth to the “bad guys” then do you really think the concept of undercover officers would even exist?

            As I often do, let’s take a DWI stop for example. Let’s say the police have stopped you for a traffic violation and they want to escalate the stop to investigate you for DWI. The officer typically asks if you’ve been drinking. Let’s say you tell the officer, no. Then the officer says, “come on, I can smell it on your breath.” Even if the officer couldn’t really smell the alcohol they can make factual claims to you about other evidence against you in order to get a confession.

            Let’s take another example. Let’s say the police stop you for a traffic violation and the officer tells you he can smell marijuana and that if you just tell him where it is and let him search without getting a warrant then it will go easier for you. He can say this to you even if he can’t smell the marijuana.

            In both of these examples the officer is trying to get you to confess to a crime by leading you to believe he already has the evidence against you. I’m always surprised how often this works. If an officer is trying to convince you that he has all the evidence he needs to arrest you then he must not. If he did, then you would already be under arrest rather than having a discussion about how easily the officer could arrest you.

            Please also see my other blog post titled Should I answer questions from the police. As I said in that post, “You have a right to remain silent and you should use it.”

Should I answer questions from the police?

Written by: Christopher Yotz

            This is a question I don’t hear much from people. I’m surprised by this. Let’s take a DWI arrest as an example. People will ask if they should blow in the breathalyzer machine or refuse but not think twice about everything they said leading up to that moment. It’s quite possible that by the time you are blowing into a machine the damage may already be done.

            If someone is stopped by the police either for a traffic violation or at a checkpoint one of the first questions an officer asks is whether you’ve been drinking. What’s the answer? You could say the same thing almost everyone does, “yes, I’ve had 2 drinks.” I guess people think that the officer will smell the alcohol so I have to admit to it but let’s minimize it by saying only two. This response is a cliché at this point. I’d say maybe 7 or 8 out of ten DWI reports I read lists some form of the this response by the arrested person. Notice I say arrested person. This response does not help you, it only helps the police. You could try and deny drinking but lying to police can be used against you as well. So, the correct answer is no answer. If you aren’t going to slur your words then you could say, “I’m not answering any questions.” I’m not sure this is entirely safe either. The best response may simply be silence. The police may later try and claim that you aren’t responding properly to their questions. However, you don’t have to respond to questions that can be used against you. You have constitutional rights and you should never give them up for free.

            In the above example the officer may also ask where you are going or where you came from. Again, answering will only help the police officer. The officer is asking these questions to try and catch you doing something illegal, not to start a new friendship. He or she may be trying to hear whether your speech is slurred and also when you talk you expel breath at a higher rate which makes it easier to smell alcohol on your breath. See how they do this? Tricky isn’t it?

            Now, let’s assume you’ve been arrested for DWI. Let’s face it, if you smell like alcohol these days you are quite probably going to be arrested. I’ve seen quite a few videos of people who were arrested for DWI who did quite well on the Standardized Field Sobriety Tests (SFST). I’ve even had a case where the officers are talking to each other on camera saying the soon to be arrested person doesn’t look, act or smell drunk and they then step out of the police car and immediately arrest him. (Oops, I just digressed into story time. Sorry about that).

            After you are arrested the police take you to the station or maybe a nice truck or trailer in a parking lot. This is where the breath test machine likely resides. Here they have more questions for you. They may say these questions are just a form they have to fill out. Actually these are questions included in the Alcohol Influence Report they have been working on since they first laid eyes on you. These questions were created in order for you to admit to all the elements of Driving While Intoxicated wrapped up in a nice little package for the police. You don’t have to answer these questions. Almost everyone does. The officer will act like it is just another government form that has to be completed. This is true; he has to complete the form. You don’t have to complete the form or answer these questions and you should not. Again, no answer just like above. I’ll digress into story time again and say that a report I once read listed some very creative responses from the arrestee on this form. While certainly entertaining, it wasn’t the best way to go.

            To sum up, you don’t have to (and should not) answer questions that might be used against you even if the question and answer sounds innocent. You have a right to remain silent and you should use it.

Can criminal convictions be expunged in Missouri?

Written by: Christopher Yotz

            People often ask me if they can have some criminal charge in their past expunged. This is understandable as it is fairly common for someone to have done something as a young person which is not representative of who they are as an older adult. Unfortunately, Missouri does not provide for very many types of convictions to be expunged unlike Kansas. In Kansas, many more types of convictions can be expunged and after shorter periods of time.

            In Missouri you can expunge some misdemeanors after 10 years and some felonies after 20 years. The following is a list of offenses that can be expunged in Missouri and their corresponding statute number:

570.120-Bad check

570.125-Stopping payment on a check

570.130-Fraudulent use of a credit device

569.065-Negligent burning or exploding

569.067-Negligent burning of crop grass, marsh or prairie

569.090-Tampering 2nd degree

569.120-Property damage 2nd degree

569.140-Trespass 1st degree

569.145-Trespass on posted property

572.020-Gambling

574.020-Private peace disturbance

574.075-Drunkenness

574.010-Disturbing the peace 1st or 2nd offense

577.010-DWI first offense

And, last but not least:

311.326-Minor in Possession of Alcohol (No less than one year after reaching the age of 21 you can file for this expungement).

            As you can see, the list is short. To get any of these charges expunged you have to file suit and satisfy some complicated technical issues. I would strongly recommend hiring an attorney for such a case.

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.