If you have been charged with a DWI in Missouri, you need to act quickly if you want to protect your right to keep driving. If you blow over the legal limit (.08), or if your blood test comes back over the legal limit, you face a suspension of your driving privileges. If you blow into a breath testing device, you should leave the police department with a sheet of paper that will act as a 15 day temporary driving permit (Form 2385, Notice of Suspension or Revocation of Your Driving Privilege). You will need to keep this form with you when driving over the next 15 days.
In order to avoid a suspension, you must file a request for an administrative hearing before your 15 day permit expires. Once you or your lawyer files the request, a letter will be sent to you acknowledging receipt of the request and setting a date for your upcoming hearing. You will also receive new temporary driving permit allowing you continue driving until your hearing is held. It is typically 4-6 weeks from the date of the request before your hearing is held. The hearing is held in front of an administrative hearing officer from the Missouri Department of Revenue (not a judge or jury). At the hearing, your lawyer will address: (1) whether the officer had probable cause to make an arrest, (2) whether your blood alcohol concentration was in fact over the legal limit.
Your hearing is very important to both your administrative case (driver’s license case) and your separate criminal case. Your lawyer can subpoena the arresting officer to appear at your hearing and then question that officer under oath. Officers often do not prepare for these hearings as they would for a trial, and the more spontaneous testimony given at these hearings can later make all the difference in your case. Most DWI arrests are arrests made without a warrant. If the police officer lacked sufficient probable cause to arrest you, the administrative case against you can be dismissed following your hearing.
There are numerous regulatory requirements (found under 19 CSR 25-30) that set a legal standard for how breath and other chemical tests must be performed. Police officers do not always follow the regulatory rules before obtaining a sample of your breath or blood. These “technical errors” will often result in the return of your driver’s license and the reinstatement of your driving privilege. For example: (1) there must be a full 15 minute observation period before you blow; (2) the breathalyzer device must have been calibrated correctly; (3) a maintenance must have been performed on the breathalyzer device in the last 35 days; (4) the maintenance report must have been timely filed with the Department of Health and Senior Services; (5) devices using compressed ethanol-nitrogen gas mixtures use gas from an approved supplier.
The result of your administrative hearing will be mailed to you approximately 10 days after the hearing. If you lose, you may appeal the hearing by filing for a trial de novo (new trial) in the associate division of the circuit court where you received the charge.
If they are otherwise eligible, driver’s can now choose to request an Immediate 90-Day Restricted Driving Privilege (RDP) before or after the administrative hearing. The RDP requires you to provide proof of installation of an approved ignition interlock device for any vehicle you operate along with an SR-22 insurance policy. You will then be able to drive for 90 days while you seek reinstatement. Theoretically, you would never go without driving if you use this option wisely.
As soon as you get a DWI charge, you need to meet with a capable and experienced attorney who can discuss your options with you. You need an aggressive and diligent DWI attorney who will leave no stone unturned. Administrative hearing results can affect the criminal side of your case. If you win your administrative hearing, many prosecutors will drop the DWI charge to a lesser offense because they understand that administrative hearings are difficult to win. If you are charged with a DWI that you plan to fight, the police officer’s testimony at that early hearing can be unrehearsed and priceless for impeachment purposes later in the case. If you utilize all the options available to you, you may be able to get your license reinstated without ever being unable to drive to work.
For more information, contact John Schleiffarth directly: