MISSOURI DUI / DWI / BAC LAW GENERAL OFFENSE CATEGORIES

Before beginning a discussion of Missouri DUI / DWI / BAC cases, it is important to note that in every Missouri alcohol-traffic offense, it is important for a driver facing theses charges to understand that there are two separate components to these types of cases. Each Missouri case involving impairment and a vehicle have both a civil and criminal element must be dealt with separately.

The criminal portion of a Missouri DUI / DWI / BAC case involves the State of Missouri attempting to fine a driver and or put him in jail for one of the criminal alcohol-related traffic offenses listed below, or in the separate section of Missouri felony DWI traffic offenses. The civil portion of a Missouri DUI / DWI / BAC case involves the Director of Revenue of the State of Missouri attempting to take action against the driver's driving privilege in the State of Missouri, separate from the criminal charge in the case.

MISSOURI DUI / DWI / BAC CRIMINAL CLASSIFICATIONS

In Missouri, most alcohol-related traffic offenses are classified as driving while intoxicated (DWI) offenses, unlike some states which call these charges Driving Under the Influence (DUI). DWI in Missouri is the "under the influence charge." Missouri also has a separate alcohol-related traffic offense called BAC (driving with an excessive blood alcohol content), which is the "per se" equivalent of the under the influence charge of DWI ("if you are above the 0.08% BAC limit you are 'per se' guilty of BAC.").

At first look, the elements of the charge of DWI and BAC appear the same, but there are significant differences between the two in a driver's Missouri DWI / BAC criminal case. The State of Missouri's burden of proof is different for each offense, and whether the driver is charged with DWI or BAC in the case will significantly effect how the trial will be handled by the defense attorney.

In Missouri, a person commits the under the influence crime of DWI if "he operates a motor vehicle while in an intoxicated or drugged condition." RSMo. 577.010. For a BAC charge, the driver may be found guilty of BAC anytime a blood, breath, or urine test is proved conclusive in determining the person operated a motor vehicle in Missouri with eight- hundredths of one percent or more by weight of alcohol in such person's blood (driving with a BAC greater than the limit of 0.08%) RSMo. 577.012.

The charges of DWI and BAC are two separate offenses in Missouri, and BAC is not the lessor included offense of DWI. The easy rule of thumb for remembering the main difference between the two charges is a driver can be convicted of DWI if enough evidence of actual impairment is presented by the state, even without a chemical test of the driver's blood, breath or urine, (as in a case where the driver refuses a chemical test in their Missouri DWI case), where a BAC charge requires a valid chemical test for conviction.

MISSOURI DWI / BAC FIRST OFFENSE OR SUBSEQUENT OFFENSE NOT WITHIN FIVE YEARS OF A PRIOR ALCOHOL RELATED TRAFFIC OFFENSE CASES

A Missouri DWI / BAC will be charged as a Class B Misdemeanor where there is not another similar charge in the past five years, or two other similar charges in the past ten years. A Missouri Class B Misdemeanor carries a potential fine up to $500.00, plus court costs. The maximum jail term allowed in Missouri for a Class B Misdemeanor is six months imprisonment. RSMo. 558.011.

A "Suspended Imposition of Sentence" (SIS) probation is generally available for Class B Misdemeanor DWI / BAC offenses in many counties in Missouri, which means if you plead guilty, you will be given a sentence that is "suspended," and you will be placed on probation for two years by law. If you successfully complete your probationary period, the conviction will not "show" on your permanent record. However, the courts will see this in their internal record keeping, and will treat it as a prior offense should you receive another similar violation in the future.

It should be noted that many rural counties in Missouri do not offer such lenient terms as offered by an SIS probation for DWI / BAC offenses, even for first time offenses. Boone County Missouri, in particular, is a notorious example of one of several counties which will force you to plead up to the court even on first time offenses, and receive no probation with a Class B Misdemeanor conviction showing on your record, or will give an Suspended Execution of Sentence (SES) probation. An SES probation means you will be placed on probation for two years, and if you successfully complete the SES probation you can usually avoid jail time, but the Class B Misdemeanor conviction will show on your record at the end of the probationary period even where it is completed successfully, i.e., an SES only avoids jail time and carries all the other penalties the same as if you plead guilty without an attorney.

ENHANCEMENT OF A SECOND OR GREATER MISSOURI DWI / BAC CRIMINAL CHARGE

In Missouri, a second or subsequent DWI / BAC charge can have it's penalties enhanced from those penalties for a first-time offense. The types of offense which may be enhanced are listed in RSMo. 577.023. These include DWI (577.010), BAC (577.012), involuntary manslaughter (565.024), assault in the second degree (565.060), assault of a law enforcement officer (acting with criminal negligence when injuring an officer while driving while intoxicated-565.082), or driving under the influence of alcohol or drugs in violation of a county or municipal ordinance where the judge is an attorney and the driver was represented by an attorney or waived the right to an attorney in writing.

MISSOURI DWI / BAC SECOND OFFENSE WITHIN FIVE YEARS OF A PRIOR DWI / BAC CONVICTION

A second DWI / BAC charge in five years in Missouri is a Class A Misdemeanor, which carries a potential fine up to $1,000, plus court costs. The maximum jail term allowed in Missouri for a Class A Misdemeanor is one year imprisonment. RSMo. 558.011. A person who receives a second DWI / BAC charge within five years of a prior similar conviction is a "prior offender" under the Missouri statutes.

RSMo. 577.023.1(3) defines a "prior offender" as a person who has pleaded guilty to or has been found guilty of one intoxication-related traffic offense, where such prior offense occurred within five years of the occurrence of the intoxication-related traffic offense for which the person is charged.

For probation for a Missouri Class A misdemeanor DWI / BAC offense, no court can give a SIS probation or allow the driver to pay a fine in place of imprisonment. To receive probation for a Missouri Class A misdemeanor DWI / BAC offense, either SIS or SES, the driver must serve a minimum of five days imprisonment or thirty days community service under supervision.

IGNITION INTERLOCK IN MISSOURI CLASS A MISDEMEANOR DWI / BAC CASES.

Under RSMo. 577.600, Missouri Courts are now required to give any driver who pleads guilty to a second or greater DWI or BAC charge what is called Ignition Interlock. This means any court granting Limited Driving Privileges to any person who is found guilty or pleads guilty to a second or subsequent DWI or BAC SHALL REQUIRE the use of ignition interlock in all vehicles operated by the person as a required condition of the limited driving privilege for a period of not less than one month.

MISSOURI CLASS D FELONY DWI / BAC THIRD OFFENSE WITHIN 10 YEARS

This category of DWI in Missouri is a Class D Felony, which carries a potential fine up to $5,000, plus court costs. The maximum jail term allowed in Missouri for a Class D Felony is five years imprisonment. RSMo. 558.011. A person who receives a third DWI / BAC charge within ten years is a "persistent offender" under the Missouri statutes.

RSMo. 577.023.1(2) (a) & (b) defines a "persistent offender" as one of the following: A person who has pleaded guilty to or has been found guilty of two or more intoxication-related traffic offenses, where such two or more offenses occurred within ten years of the occurrence of the intoxication-related traffic offense for which the person is charged; A person who has pleaded guilty to or has been found guilty of involuntary manslaughter, assault in the second degree, or assault of a law enforcement officer in the second degree.

For probation for a Missouri Class D Felony DWI / BAC offense, no court can give a SIS probation or allow the driver to pay a fine in place of imprisonment. To receive probation for a Missouri Class D Felony DWI / BAC offense, the "persistent offender" driver must serve a minimum of ten days imprisonment or sixty days community service under supervision.

IGNITION INTERLOCK IN MISSOURI CLASS D FELONY DWI / BAC CASES.

Under RSMo. 577.600, Missouri Courts are now required to give any driver who pleads guilty to a second or greater DWI or BAC charge what is called Ignition Interlock. This means any court granting Limited Driving Privileges to any person who is found guilty or pleads guilty to a second or subsequent DWI or BAC SHALL REQUIRE the use of Ignition Interlock in all vehicles operated by the person as a required condition of the limited driving privilege for a period of not less than one month.

NOTE: The Missouri Legislature in 2005 Significantly Enhanced Multiple Missouri DWI Offenses by Adding the Categories of "Aggravated Offender" and "Chronic Offender" to Some Multiple DWI Offenders. Click Here to Read About the New Class C Felony and Class B Felony Enhancements.

MISSOURI DUI / DWI / BAC CIVIL LICENSE SUSPENSION / REVOCATION HEARINGS

As briefly mentioned above, the civil portion of a Missouri DUI / DWI / BAC case is completely separate from the criminal charge, and involves the Director of Revenue of the State of Missouri attempting to take action against the driver's driving privilege in the State of Missouri, separate from the criminal charge in the case.

In other words, the outcome of the civil license case is not dependent on the criminal case, or vice-versa.

In the civil portion of a Missouri DUI / DWI / BAC case, the maximum amount of time a license may be suspended in one year, (unless the driver is subject to a five or ten-year denial for prior offenses), with the additional penalties usually being imposed that the driver: pay a reinstatement fee, file proof of SR-22 insurance, and attend a substance abuse assessment.

Because the license suspension / revocation action against the driver is civil in nature, it is important to note that many of the rules of criminal proceedings do not apply. For instance, in the typical civil license suspension /revocation action against a driver over the age of 21, the initial traffic stop does not even have to be lawful for the driver to still have their license suspended in the civil action!! (Note: in the civil portion of under-21 Missouri DUI / DWI / BAC cases, a lawful stop IS required.). License suspensions / revocations go on a permanent driving record in Missouri.

TIME ALLOWED TO REQUEST A HEARING AND CHALLENGE THE DRIVER'S LICENSE SUSPENSION / REVOCATION IN MISSOURI DUI / DWI / BAC OR OTHER DRUNK DRIVING CASES

How much time a driver is allowed to request a hearing to challenge the suspension of the driving privilege in the State of Missouri in a Missouri DUI / DWI / BAC or other drunk driving case, is determined by whether the driver submitted to a chemical test of his or her blood, breath or urine after arrest, or if the driver refused to submit to the chemical test. There are two separate types of civil proceedings, depending on whether the driver consented to or refused the chemical test.

TIME TO REQUEST A LICENSE SUSPENSION HEARING IN MISSOURI DUI / DWI / BAC CHEMICAL TEST CASES

If you consented to a chemical test of your blood, breath, or urine, and the test results is above a 0.08% BAC, you have fifteen days to request an administrative hearing challenging your Missouri driving privilege suspension / revocation, or your suspension / revocation will begin immediately thereafter.

TIME TO REQUEST A LICENSE SUSPENSION HEARING IN MISSOURI DUI / DWI / BAC CHEMICAL TEST REFUSAL CASES

If you were asked to take a chemical test of your blood, breath, or urine in a Missouri DUI / DWI / BAC or other drunk driving case, and you refused to take the test, you have 30 days to file a Petition for Review in the Circuit Court of the county in Missouri where you were arrested to request a refusal hearing challenging your license suspension, or your suspension will begin immediately thereafter.

PENALTIES IN MISSOURI ADMINISTRATIVE HEARINGS FOR CHEMICAL TEST CASES

Should you not request an administrative hearing challenging the chemical test being in excess of 0.08% BAC within the time allowed, or if you lose you hearing, you will be given a suspension / revocation as follows:

" a 90-day license suspension for any first-time Missouri DUI / DWI / BAC or other drunk driving charge where the is no prior, similar charge in the past five years. During the first 30 days of this type of license suspension you cannot drive for any reason, and this is followed by a 60-day limited restriction period where you can drive for limited purposes: to work, to school, to alcohol treatment, etc.

" a one-year license revocation for case in which there is a prior similar charge in the past five years. You will not be eligible for a hardship privilege if you have a previous DWI or BAC conviction, administrative alcohol suspension or chemical refusal on your driving record within the past five years.

FIVE AND TEN YEAR DENIALS:

Where there are cases within five years that result in two DWI / BAC convictions it will result in a five-year license revocation, and you are not eligible for license reinstatement at all during that time. For any five-year denial, you can only apply for a hardship driving license after two years, only if neither of the convictions were a felony, and only if you are "otherwise eligible" for a hardship license under Missouri law.

Similarly, Any combination of three or more convictions for DWI / BAC within a lifetime will result in a ten-year license revocation. On a ten-year denial, you cannot apply for a hardship license for three years. For any ten-year denial, you cannot apply for a hardship license for three years, and only if you are "otherwise eligible" for a hardship license under Missouri law. Note: no hardship licenses are granted for felonies.

Further, in any Missouri DUI / DWI / BAC case which results in a conviction (where you plead guilty straight up to the court without probation or where you receive an SES probation), you will be assessed points on your driver's license, and will be suspended for "points" separate from any alcohol-related suspension.

PENALTIES IN MISSOURI ADMINISTRATIVE HEARINGS FOR CHEMICAL TEST REFUSAL CASES

Should you not request a refusal hearing challenging the refusal within the time allowed, or if you lose you hearing, you will be given a one year license suspension in a Missouri DWI / BAC refusal case.

Assuming this is the first time you have refused a chemical test, it is possible to receive a hardship driving privilege for employment purposes after the first 90-days of the one year revocation has passed, so long as there was not a refusal in any prior DWI case, i.e.- you "blew" in any prior case you may have had.

Further, in any Missouri DUI / DWI / BAC case which results in a conviction (where you plead guilty straight up to the court without probation or where you receive an SES probation), you will be assessed points on your driver's license, and will have your driver's license suspended for "points" separate from any alcohol-related suspension.