OPERATION: A person commits the crime of "driving while intoxicated" if he operates a motor vehicle while in an intoxicated condition. 577.010, RSMo. 2000. NOTE: “actual physical control” has not been the standard in Missouri DWI cases since1996.

It must always be shown that the driver drove or operated a vehicle. 577.001.1, RSMo 2000 states: “as used in this chapter, the term ‘drive’, ‘driving’, 'operate,' or 'operating' means physically driving or operating a motor vehicle.”

Operation can be proven where any subject turns on a vehicle or otherwise engages the machinery of the vehicle. For instance, a person may be deemed to be operating a motor vehicle where the engine is running with the driver asleep in the car, pulled over on the side of the road. Cox v. Director of Revenue, 98 S.W.3d 548 (Mo. Banc 2003); State v. Wiles, 26 S.W.3d 436 (Mo. App. S.D. 2000); State v. Mitchell, 77 S.W.3d 637 (Mo. App. W.D. 2002).

Or similarly, a person steering a moving vehicle down a hill, out of gas with the engine off, is “operating” for the purposes of the statute. Herr v. Director of Revenue, 134 S.W.3d 686 (Mo. App. E.D. 2004).

Further information on "operation."

Covered Vehicles or Devices:

The term “Motor vehicle” is not defined in the Missouri DWI statutes. However, it seems clear under recent Missouri caselaw that any motorized vehicle will suffice for these purposes. There are also separate statutes for Missouri Boating While Intoxicated cases, where a motor is not even required. Golf carts, ATVs and mini-bikes have all been deemed valid “motor vehicles” for Missouri DWI purposes. Covert v . Director of Revenue, 151 S.W.3d 70 (Mo. App. E.D. 2004); State v. Laplante, 148 S.W.3d 347 (Mo. App. S.D. 2004); State v. Bailey, 140 S.W.3d 260 (Mo. App. S.D. 2004).

Covered Locations:

You do not have to be driving a motor vehicle on a “highway” to receive a Missouri DWI. Missouri caselaw provides a person may be guilty of DWI anywhere in the state, despite language in the implied consent warning using language of “upon public highways of the state.” Private roads, private property, parking lots, etc.-- these are all fair game. Bertram v. Director of Revenue, 930 S.W.2d 7 (Mo. App. W.D. 1996); Peeler v. Dir. of Revenue, 934 S.W.2d 329 (Mo. App. E.D. 1996).

Intoxicated:

It must be shown that a subject is intoxicated for a Missouri DWI charge, 577.010 RSMo., or possessing a blood alcohol concentration in excess of 0.08% or higher (without having to show any intoxication) for a BAC case (excessive blood alcohol content) pursuant to 577.012 RSMo. Any intoxication that in any manner impairs the ability of a person to operate a motor vehicle is sufficient to sustain a conviction under the Missouri DWI statute. State v. Raines, 62 S.W.2d 727, 729 (Mo. 1933).

Driving While Intoxicated Offenses:

DWI (driving while intoxicated) “A person commits the crime of “driving while intoxicated” if he operates a motor vehicle while in an intoxicated or drugged condition. Section 577.010, RSMo. 2000.

BAC (excessive blood alcohol content) (The “per se” law) (subject has a blood alcohol concentration of 0.08% or higher. Section 577.012, RSMo. 2000. (0.08% BAC equals grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath. 577.037).

Driving While Intoxicated (Drugs)

577.010 lists being under the influence of a drug in the Missouri DWI statute. State v. Wilson, 846 S.W.2d 796 (Mo. App. S.D. 1993); State v. Scholl, 114 S.W.3d 304 (Mo. App. E.D. 2003); State v. Falcone, 918 S.W.2d 288 (Mo. App. S.D. 1996); State v. Walter, 918 S.W.2d 927 (Mo. App. E.D. 1996); Johnson v. Director of Revenue, 168 S.W.3d 139 (Mo. App. W.D. 2005); State v. Friend, 943 S.W.2d 800 (Mo. App. W.D. 1997); State v. Walter, 918 S.W.2d 927 (Mo. App. E.D. 1996).

302.505 (DWI Under 21) If Under 21, Zero Tolerance rules apply. 302.505 provides the per se alcohol limit for a minor to be DWI is 0.02% BAC. The under-aged driver is facing license suspension under Zero Tolerance, but there is currently no criminal sanction for under-aged DWI in Missouri.

Commercial Motor Vehicles

If the case involves a commercial motor vehicle, the per se limit is “if there is .04 percentage or greater by weight of alcohol in his or her blood.” 302.780 RSMo 2000. A commercial driver will be placed out of service for 24 hours if any alcohol is found in their system. 302.755. More information on Commercial Driver's Licenses (CDLs) in Missouri DWI cases.

Other Criminal Offenses Involving Under the Influence Offenses:

The main criminal felony driving offenses in Missouri are:

Missouri DWI Persistent Offender— RSMo. Section 577.023;

Missouri DWI Aggravated Offender- RSMo. Section 577.023;

Missouri DWI Chronic Offender- RSMo. 577.023;

Assault Second Degree— RSMo. Section 565.060(4);

Involuntary Manslaughter— RSMo. Section 565.024;

Murder Second Degree— RSMo. Section 565.021;

Leaving the Scene of a Motor Vehicle Accident— RSMo. Section 577.060;

Felony Driving While Suspended or Felony Driving While Revoked— RSMo. Section 302.321; and,

Felony Operation of a Motor Vehicle Without a Proper License— RSMo. Section 302.020.

For More Information on Missouri Felony Driving Offenses

**** 2005 Felony DWI Law Update****

Degree of Impairment Required:

Any intoxication that in any manner impairs the ability of a person to operate an automobile is sufficient to sustain a conviction for Missouri DWI. State v. Raines, 62 S.W.2d 727, 729 (Mo. 1933). A chemical test result at or above 0.08% BAC is required for a conviction for “BAC” ("excessive blood alcohol content" or “per se” law).

Penalties for Driving Under the Influence Offenses:

First offense (Class B Misdemeanor) up to 6 months is jail, up to $500.00 fine.

Second offense (Class A Misdemeanor, “prior offender”) two offenses in five years enhances up to prior offender: up to one year in jail, up to a $1000.00 fine.

Third offense (Class D Felony, “persistent offender”) three offenses in ten years: up to five years in jail, up to a $5000.00 fine.

NEW IN 2005: Section 577.023 RSMo.:

Fourth offense aggravated offender (Class C Felony) up to seven years in jail, up to a $5000.00 fine.

Fifth offense chronic offender (Class B Felony) not less than five years nor more than 15 years in prison.

An "aggravated offender" is a person who:(a) Has pleaded guilty to or has been found guilty of three or more intoxication-related traffic offenses; or (b) Has pleaded guilty to or has been found guilty of one or more intoxication-related traffic offense and, in addition, any of the following: involuntary manslaughter under subdivision (2) or (3) of subsection 1 of section 565.024, RSMo; murder in the second degree under section 565.021, RSMo, where the underlying felony is an intoxication-related traffic offense; or assault in the second degree under subdivision (4) of subsection 1 of section 565.060, RSMo; or assault of a law enforcement officer in the second degree under subdivision (4) of subsection 1 of section 565.082, RSMo;

(2) A "chronic offender" is: (a) A person who has pleaded guilty to or has been found guilty of four or more intoxication-related traffic offenses; or (b) A person who has pleaded guilty to or has been found guilty of, on two or more separate occasions, any combination of the following: involuntary manslaughter under subdivision (2) or (3) of subsection 1 of section 565.024, RSMo; murder in the second degree under section 565.021, RSMo, where the underlying felony is an intoxication-related traffic offense; or assault in the second degree under subdivision (4) of subsection 1 of section 565.060, RSMo; or assault of a law enforcement officer in the second degree under subdivision (4) of subsection 1 of section 565.082, RSMo; or (c) A person who has pleaded guilty to or has been found guilty of two or more intoxication-related traffic offenses, and, in addition, any of the following: involuntary manslaughter under subdivision (2) or (3) of subsection 1 of section 565.024, RSMo; murder in the second degree under section 565.021, RSMo, where the underlying felony is an intoxication-related traffic offense; assault in the second degree under subdivision (4) of subsection 1 of section 565.060, RSMo; or assault of a law enforcement officer in the second degree under subdivision (4) of subsection 1 of section 565.082, RSMo;

Penalties for Other Criminal Offenses Involving Under the Influence Offenses:

Missouri Felony Driving Offenses

Implied Consent Laws:

Tests permitted: Blood, breath or urine – two samples as directed by law enforcement. The subject does not get to choose which chemical test to take. 577.020.1. Krakover v. Director of Revenue, 128 S.W.3d 589 (Mo. App. E.D. 2004); Dotzauer v. Director of Revenue, 131 S.W.3d 371 (Mo. App. E.D. 2004); Murphy v. Dir. of Revenue, 136 S.W.3d 141 (Mo. App. S.D. 2004); Kiso v. King, 691 S.W.2d 374 (Mo. App. W.D. 1985); State v. Brown, 804 S.W.2d 396 (Mo. App. 1991).

Type of advisement required: Of Implied Consent law requirements; of penalties for refusing chemical testing

Unlike many states, in Missouri there are two separate civil proceedings where a driver might get his or her driver's license suspended for DWI. There are administrative hearing proceedings, governed by 302.500- 302.345, RSMo, for those drivers who gave a chemical test above the applicable legal limit.

There is also a separate civil driver's license suspension hearing for chemical test refusal cases, governed by 577.020 and 577.041. First offense administrative proceedings (where the driver gave a chemical test sample over the legal limit) are 90-day civil license suspensions; one year for any case where there is a prior offense within the last five years. There is a one-year civil license suspension for any chemical test refusal case.

Information on the Missouri Implied Consent Provisions

Information on Missouri Driver's License Suspension Hearings Where the Driver Has Given a Chemical Test Above the Applicable Legal Limit

Information on Missouri DWI Chemical Test Refusal Case

Information on Breath Testing in Missouri DWI Cases

Admissibility of "Refusal" of a Chemical Test:

The driver’s refusal to take standardized field sobriety tests (SFSTs) or a refusal to take requested chemical tests are admissible against him or her. Cain v. Director of Revenue, 130 S.W.3d 1 (Mo. App. S.D. 2003). Edmisten v. Director of Revenue, 92 S.W.3d 270, 274 (Mo. App. W.D. 2002); Hockman v. Director of Revenue, 103 S.W.3d 382, 385 (Mo. App. W.D. 2003); State v. Myers, 940 S.W.2d 64, 65 (Mo. App. S.D. 1997); State v. McCarty, 875 S.W.2d 622, 623 (Mo. App. S.D. 1994); RSMo. Section § 577.041; State v. Rose, 86 S.W.3d 90 (Mo. App. W.D. 2002); State v. Williams, 847 S.W.2d 111, 113 (Mo. App. W.D. 1992).

Implied Consent Laws – Accidents Involving Death or Serious Injury Tests permitted:

Any two tests of the driver’s blood, breath or urine are permitted in any Missouri DWI case. A driver does not get to choose which test to take. 577.020.1. Krakover v. Director of Revenue, 128 S.W.3d 589 (Mo. App. E.D. 2004); Dotzauer v. Director of Revenue, 131 S.W.3d 371 (Mo. App. E.D. 2004); Murphy v. Dir. of Revenue, 136 S.W.3d 141 (Mo. App. S.D. 2004); Kiso v. King, 691 S.W.2d 374 (Mo. App. W.D. 1985); State v. Brown, 804 S.W.2d 396 (Mo. App. 1991).

Rules Governing the Administration of Chemical Tests in Missouri

Chemical tests in Missouri must be performed in accordance with Missouri Department of Health Regulations 19 CSR 25-30.080. To lay a proper foundation for a breath test in a Missouri DWI trial, the State must be prepared to show that the chemical test was administered by an officer holding a valid Type II or Type III permit issued by the Department of Health, that the chemical testing machine was approved by the Department of Health, that the chemical testing was administered in accordance with the guidelines established by the Department of Health, and that a maintenance test had been performed on the breath testing machine by a Type II permit holder within 35 days preceding the chemical test. Tidwell v. Dir. of Revenue, 931 S.W.2d 488 (Mo. App. S.D. 1996).

Blood-Drawing Statute:

There are both Missouri statutes and Missouri Department of Health regulations regarding blood draws in Missouri DWI cases. Missouri Department of Health Regulation 19 CSR 25-30.070(1) requires that “blood samples shall be taken in accordance with the provisions of sections 577.029”.

RSMo. 577.029 provides that:

“A licenses physician, registered nurse, or trained medical technician at the place of his employment, acting at the request and direction of the law enforcement officer, shall withdraw blood for the purposes of determining the alcohol content of the blood, unless such medical personnel, in his good faith medical judgment, believes such procedure would endanger the life or health of the person in custody. Blood may be withdrawn only by such medical personnel, but such restriction shall not apply to the taking of a breath test, a saliva specimen, or a urine specimen. In withdrawing blood for the purposes of determining the content thereof, only a previously unused and sterile needle and sterile vessel shall be utilized and the withdrawal shall otherwise be in strict accord with accepted medical practices.

A nonalcoholic antiseptic shall be used for cleansing the skin prior to venapuncture. Upon the request of the person who is tested, full information concerning the test taken at the direction of the law enforcement officer shall be made available to him.” Id.

The State has the burden of proving absolute and literal compliance with the provisions of RSMo. 577.029 before a blood test result may be admitted into evidence. State v. Setter, 763 S.W.2d 228, 230 (Mo. App. 1988). Furthermore, “(r)ules of a state administrative agency which have been duly promulgated pursuant to proper delegated authority have the full force and effect of law.” Woodall v. Dir. of Revenue, 795 S.W.2d 419 (Mo. Ct. App. 1980). “Missouri courts have previously determined that the state must demonstrate absolute and literal compliance with statutory provisions contained in Chapter 577 regulating the manner in which blood alcohol tests are administered prerequisite to introducing the test results into evidence. See Setter, supra. These statutory enactments serve as “a substitute for the common law foundation for the introduction of evidence of analysis for blood alcohol, and are mandatory. State v. Peters, 729 S.W.2d 243, 245 (Mo. App. 1987). Similarly, where the Missouri Department of Health has enacted regulations concerning the proper methods of conducting blood alcohol tests as authorized by Chapter 577, including urine analysis, the State must demonstrate absolute and literal compliance with these regulations prerequisite to introducing the test results into evidence.” State v. Regalado, 806 S.W.2d 86, 88 (Mo. App. 1991).

Independent Test Statute:

Missouri law provides that a driver, once they have taken the chemical test requested by the law enforcement officer, may request an independent test at his or her own expense. § 577.020.5, RSMo.

Pursuant to § 577.020.5, RSMo, a subject who is arrested for Missouri DWI and submits to chemical test at the direction of the law enforcement officer has a right to obtain an independent chemical test by a physician, qualified technician, chemist, registered nurse, or other qualified person, at the choosing and expense of the person to be tested. Pierce v. Dir. of Revenue, 51 S.W.3d 888 (Mo. App. W.D. 2001).

It is important to note that the police do not have to inform this driver of this right under Missouri law unless the driver knows to ask for it. The statute also does not allow the driver to choose which chemical test to take, and if the driver refuses to take the chemical test requested, he or she then waives the right to a separate chemical test at his or her own expense, and will be deemed to have "refused.” Turner v. Dir. of Revenue, 829 S.W.2d 671 (Mo. App. W.D. 1992).

Plea Bargaining Statute:

None

Rules for Civil Administrative Hearings v. Chemical Test Refusal Hearings

As noted above, there are two separate civil driver's license suspension hearings possible in Missouri, depending on whether or not a chemical test was taken, and failed, or whether or not the driver allegedly refused a chemical test.

Breath Test Administrative Hearing Cases Where the Driver is Over the Legal Limit

Regarding civil license suspensions where the driver gave a chemical test and the result was above the applicable legal limit, the issue in this type of administrative proceeding is whether there was probable cause to arrest the subject for some type of alcohol-related traffic offense and whether the subject was driving with a BAC at or above the legal limit. House v. Director of Revenue, 997 S.W.2d 135 (Mo. App. S.D. 1999).

In these types of cases, the driver is required to receive a notice of suspension recovation (Form 2385) if the test results are available at the time of arrest, (or it can be later mailed if the results are not available until later), and the sworn report of the officer must be filed with the Missouri Director of Revenue.

If the driver wishes to challenge the suspension or revocation of his or her driver’s license for submitting a chemical test over the legal limit, a request for administrative hearing must be filed within 15 days of being served the notice, whether the service was in person or otherwise. There are no exceptions to the 15 day filing rule, and requests that are not timely filed will be denied. Darr v. Dir. of Revenue, 897 S.W.2d 697 (Mo. App. E.D. 1994).

This type of administrative hearing is not conducted in the Circuit Court of the county where the driver was arrested, but is conducted by Director of Revenue at the first level. The driver does not get a hearing in front of a Circuit Court judge in the county of arrest unless the driver exhausts all of his or her administrative remedies. Marquart v. Dir. of Revenue, 896 S.W.2d 716 (Mo. App. E.D. 1995). In other words, if the driver does not appear at the first hearing rights to an actual trial in Circuit Court on a trial de novo appeal are waived.

If a request for an administrative hearing is requested in a timely manner in such an administrative proceeding, the driver may keep driving while the hearing is pending. If the driver does not prevail on the first level administrative hearing, he or she will have a license suspension or license revocation imposed 15 days after the hearing officer’s adverse ruling against the driver, regardless or whether the driver even ultimately wins the matter at trial de novo in Circuit Court on appeal. State ex rel. Dir. of Revenue v. Gabbert, 925 S.W.2d 838 (Mo. banc 1996).

If the driver loses the first-level civil administrative hearing, a petition for trial de novo must be timely filed in the Circuit Court of the county of arrest.

Chemical Test Refusal Cases.

Administrative license suspension or revocation cases involving the driver allegedly refusing a chemical test are handled differently than cases where the driver gave a chemical test result over the legal limit.

A civil refusal case is also begun by an officer filing a sworn report in the case, but the driver is given a notice of license suspension or license revocation for refusal (Form 4323).

A driver’s rights and duties to properly request a civil hearing are different for a refusal. To properly request a civil refusal hearing the driver must file within 30 days a Petition for Review challenging the refusal directly to the Circuit Court of the county of arrest. If the driver fails to file the petition within this timeframe, his or her revocation for refusal is final. Romans v. Dir. of Revenue, 783 S.W.2d 894 (Mo. banc 1990).

The relevant issues in a Missouri refusal hearing are: whether the subject was arrested (or stopped, if under age 21); whether the officer had reasonable grounds to believe that the subject was operating a motor vehicle while in an intoxicated condition (or with a BAC of at least .02 if under age 21); and whether the subject refused to submit to a chemical test. As part of the "refusal issue,” the State must also show that a proper Implied Consent warning was read, and that 20 minutes were given to contact an attorney if the driver asked to speak with counsel.