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PROBATION IN A MISSOURI DUI / DWI OR OTHER DRUNK DRIVING CASE

If you are found guilty in your Missouri DUI / DWI or other drunk driving case, you may be placed on probation.

Probation is a process where the Court may release you without incarceration or other imprisonment after you are found guilty.

Probation is different than parole. Parole is where you plead or are found guilty, and then released after you have served a period of incarceration or other imprisonment after the sentence is imposed.

When you are placed on probation after pleading or being found guilty in a Missouri DUI / DWI or other drunk driving case, your release is based on conditions the Court places on you, and the probation can either be court supervised for a fixed period of time, or supervised by the Missouri State probation and parole, or your probation could be supervised by a private probation company.

Probation in Kansas City, Missouri DUI / DWI or other drunk driving cases often involves supervised probation by the Private companies Midwest ADP or Northland Dependency.

Common types of probation are “SIS” (suspended imposition of sentence) or “SES” (suspended execution of sentence).

SUSPENDED IMPOSITION OF SENTENCE

“SIS” (suspended imposition of sentence) is a type of probation in Missouri DUI / DWI or other drunk driving cases where you plead guilty or are found guilty of the offense, and then you are placed on SIS probation for a fixed period of time.

As long as you successfully complete the terms of your probationary period, an SIS will not result in a conviction “showing” on your record. Note: an SIS is different than the “diversion” that is offered in some states for DUI / DWI or other drunk driving cases.

A diversion is where you agree to enter into a diversionary period, but no guilty plea is entered. The court offering the diversion continues the case for a fixed period of time, and if the diversionary period is completed, the file regarding the DUI / DWI case or DUI / DWI arrest is dismissed. A true diversion is not usually offered in Missouri DUI / DWI cases.

SIS is often given as probation for first-time offenders in Missouri DUI / DWI or other drunk driving cases. You should be aware, however, that there are counties in Missouri that do not offer SIS for first-offense DWI, such as Boone County and Greene County, Missouri.

SUSPENDED EXECUTION OF SENTENCE

“SES” (suspended execution of sentence) is different than SIS. Similar to SIS, SES, is a type of probation in Missouri DUI / DWI or other drunk driving cases where you plead guilty or are found guilty of the offense, and then you are placed on SES probation for a fixed period of time.

However, with an SES, the Court imposes a sentence of incarceration at the time of the finding of guilt, and the execution of this sentence is suspended for a fixed period of time for probation. So long as you are able to complete the terms of probation, you do not have to serve any of the jail time that was “suspended,” but unlike an SIS, an SES will result in a conviction “showing” on your record regardless of you not having to go to jail, even if the probation is successfully completed.

PROBATION IS NOT A MATTER OF RIGHT

The circuit court may place any person found guilty, either by trial or plea, of any offense over which they have jurisdiction, on probation, subject to certain limitations, See § 559.012, RSMo 1994, and Rule 29.07(e). However, f you are convicted of certain specified offenses, you are statutorily excluded from consideration for probation.

One misconception is regarding probation being a matter of right. Probation is not a matter of right. Whether or not a court grants you probation if you are found guilty of DWI is solely in the trial court’s discretion. Smith v. State, 517 S.W. 2d 148 (Mo. 1974).

A trial court can deny probation even if there is a favorable pre-sentence investigation report by the board of probation and parole. v. Austin, 620 S,W,2d 172, 175 (Mo.App. E.D. 1981). In State v. Wood, 668 S.W.2d 172, 175 (Mo.App. E.D. 1984), the appellate court stated that the sentencing court is not required to state reasons for denying probation.

A court may place you on probation in a Missouri DUI / DWI or other drunk driving case for a specific period of time, following either, conviction or the suspension of imposition of sentence, if the court finds under all the circumstances of the case that:

1. “institutional confinement of the defendant is not necessary for the protection of the public; and,

2. “the defendant is in need of guidance, training and other assistance which, in his case, can be effectively administered through probation supervision.”

Section 559.012, RSMo 1994.

TERM OF PROBATION

Section 559.016, RSMo 1994, provides that probation terms shall be:

from one year to five years for a felony;

from six months to two years for a misdemeanor; and,

from six months to one year for an infraction.

The court, after granting probation for less than the maximum period of time, may order on extension of the probation, but the total resulting probation term shall not exceed the maximum time that is provided for by statute for the level of crime involved.

CONDITIONS OF PROBATION

The trial court, when imposing probation on you after a Missouri DUI / DWI or other drunk driving arrest, may establish such conditions on the probation “as the court in its discretion deems reasonably necessary to insure that the defendant will not again violate the law.” Section 559.021.1, RSMo 1994. Section 559.110, RSMo 1994.

The Court, as discussed, may make the probation court supervised, supervised by the Missouri State Board of Probation and Parole, or may have the probation supervised by a private entity like Midwest ADP or Northland Dependency, two providers in the Kansas City, Missouri area.

The trial court is required to have the Missouri State Board of Probation and Parol provide probation services for all defendants convicted of any felony and for certain classes of A misdemeanors. Section 217.750.2, RSMo 1994.

The trial court may also establish special conditions on the granting of probation in it’s discretion. Some of these conditions typically are:

Curfews;

Restrictions on travel;

Abstinence from alcohol or nonprescription drugs;

Not frequenting establishments where alcohol is primary or a major item for sale;

Restriction upon travel or area of your residence while on probation;

Steady employment;

Attendance in school or classes directed towards a general equivalency diploma; and,

General good behavior.

The court has very wide latitude in this area, subject only to a restriction that conditions not be illegal, immoral, or impossible to perform, State v. Brantley, 353 S.W. 2d 793 (Mo. 1962).

Other conditions of probation typical in a Missouri DUI / DWI or other drunk driving case include:

Completion of community service;

Completion of a SATOP (Substance Abuse Traffic Offenders Program);

Completion of a MADD VIP (Victim Impact Program);

Ignition Interlock on any vehicle that you will drive while on probation if you have prior DUI / DWI or other drunk driving arrests.

EXTENDED TERM FOR DANGEROUS OR PERSISTENT OFFENDERS

It is important to note that the Missouri Legislature in 2005, created two new classes of felony DWI offenses.

**** 2005 Update **** New Felony DWI Driving Offenses

General Discussion of Missouri Felony Driving Offenses

In general, if you have past felony offenses, your term can be significantly extended.

Under Section 558.016.1, RSMo 1994, the court is permitted to sentence you to an extended term of imprisonment if the court finds that you are a persistent offender or a dangerous offender.

Section 577.023 also defines DWI “prior offenders,” "persistent offenders,” “chronic offenders,” and “aggravated offenders.”

If the court, upon proper pleading and proof of the earlier convictions, finds the defendant to be a persistent or dangerous offender under the procedures set forth in § 558.021, RSMo 1994, the court is authorized to extend the term of imprisonment to the authorized maximum set forth in § 558.016.7 as follows:

For a Class A Felony, any sentence authorized for a Class A Felony;

For Class B Felony, a term of years not to exceed thirty years;

For a Class C Felony, a term of years not to exceed twenty years;

For a Class D Felony, a term of years not to exceed ten years.

FACTORS TO CONSIDER IN IMPOSING A FINE

In addition to possibly being placed on probation in a Missouri DUI / DWI or other drunk driving case, you will obviously also be given a monetary fine if you plead or are found guilty.

The trial court is supposed to consider the following in determining how much to fine you:

1. The “burden that payment [of the fine] will impose in view of the financial resources of an individual;

2. That the amount of the fine should not prevent the convicted defendant “from making restitution or reparation to the victim of the offense”;

3. That, where any other disposition is authorized, the court should not impose a fine only, unless the court “is of the opinion that the fine alone will suffice for the protection of the public”; and,

4. That the court should not impose a fine together with other authorized sentence unless the defendant has “derived a pecuniary gain from the offense” or the court is of the opinion that a “fine is uniquely adapted to the deterrence of the type of offense involved or to the correction of the defendant.”

§ 560.026, RSMo 1994.

MAXIMUM AMOUNTS OF FINES

Sections 560.011 and 560.016, RSMo 1994, provide the maximum fines which the courts can give you in a Missouri DUI / DWI or other drunk driving case, depending on how you are charged.

Classification of Offense	Maximum Fine
C or D Felony	$5000.00
A Misdemeanor	$1000.00
B Misdemeanor	$500.00
Infraction	$200.00

SPECIAL ALTERNATIVE PROGRAMS

There are also several special programs provided for by statute that you could receive in a Missouri DUI / DWI or other drunk driving case instead of a traditional prison sentence if you qualify, even if you being granted probation does not appear likely:

1. Section 217.362, RSMo 1994 - Cocaine Addiction Program;

2. Section 217.364, RSMo 1994 - 180-day Offenders Under Treatment Program;

3. Section 217.368, RSMo 1994 - Missouri Regimented Discipline Program (boot camp);

4. Section 217.785, RSMo 1994 - Postconviction Drug Treatment Program;

5. Section 559.115, RSMo 1994 - 120-day Institutional Treatment Program;

6. Section 559.115 - Shock Incarceration Program;

7. Section 559.115 - Sex Offender Assessment Program (SOAP);

8. Section 589.040, RSMo 1994 - Missouri Sex Offender Program (MOSOP0; and

9. Section 217.720, RSMo 1994 - House Arrest.

INSTITUTIONAL DRUG TREATMENT PROGRAMS

You may also be placed in Institutional Treatment programs if your Missouri DUI / DWI or other drunk driving case involved drugs or a felony DWI.

MISSOURI POSTCONVICTION DRUG TREATMENT PROGRAM

The “Missouri postconviction drug treatment program,” is as “a program of noninstitutional and institutional correctional programs for the monitoring, control and treatment of certain drug abuse offenders.”

The Missouri Department of Corrections maintains this program, and the institutional phase is appropriate for any offender under the supervision and control of the department of corrections.

Section 217.785.3 provides that if you are a first-time offender who is found guilty of any violation of any drug-related offense, or whose abuse of controlled substances was “a precipitating or contributing factor in the commission of his offense,” and who is placed upon probation by the court may be required by the court to participate in the noninstitutional phase of the program.

This noninstitutional phase is community-based and includes education, treatment, and rehabilitation programs.

If you fail to complete the noninstitutional phase of this post-conviction drug treatment program as a special condition of continued probation, it authorizes the trial court to do to you whatever it finds appropriate. However, assignment to the institutional phase by the court may be without formal revocation of probation.

At any time within the last thirty days of the 120-day you are assigned to the institutional phase of the program, the Missouri Department of Corrections will submit to the trial court, a report outlining your progress in the program.

If you are unsuccessful in participating in the program, the trial court will be advised, and you will be brought back in front of the court for a probation revocation hearing, or for anything else the court can do to you at that time under the law. If you do successfully complete the program, you will be released to probation and parole, and the court will be advised of your successful completion.

OFFENDERS UNDER TREATMENT PROGRAM

There is also a separate “Offenders Under Treatment Program” under Section 217.364.

This program is a 180-day institutional correctional program for the monitoring, control and treatment of certain substance abuse offenders and certain nonviolent offenders followed by placement on parole with continued supervision.”

This program is an intermediate punishment by the Missouri Department of Corrections which may include: education, treatment and rehabilitation.” Section 217.364.4.

If you successfully complete this program, the Missouri Department of Corrections is required to notify the sentencing court and the board of probation and parole within thirty days of the completion.

The board of probation and parole may then advise the sentencing court of your eligibility for parole.

The original sentencing court will then hold a hearing making a determination as to your fitness to be placed on parole. The trial court will follow the recommendation of the Missouri Board of Probation and Parole unless the court makes a determination that such a placement would be an abuse of discretion. Section 217.364.4.

If you fail to successfully complete the program, you will be removed from the program and shall serve the balance of the sentence you were given at final disposition with the Missouri Department of Corrections.