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License Suspension – Breath Test Over the Legal Limit

Challenging the Driver’s License Suspension

If a person takes a breath test in a DWI case in the state of Missouri, and the results of that breath test are a .08 or higher, then that person’s driver’s license is subject to suspension. If it is a first-time offense, the person is looking at a 90-day suspension, the first 30 days of which the person is not allowed to drive at all, and the remaining 60 days where the person can drive for work-related purposes.

But, there is a process to challenge the suspension for blowing over on a breath test in a DWI case in Missouri called an Administrative Hearing. The person will be given paperwork by the police officer indicating that there is a pending suspension of his driver’s license. The paperwork will explain that the person has 15 days to file a challenge to the suspension with the Department of Revenue. Once a challenge has been filed, the person will be allowed to continue driving with full driving privileges during the time leading up to and including the administrative hearing, and until they get a response or a judgment from the Department of Revenue from the administrative hearing.

Administrative Hearing

The administrative hearing process is held by a Department of Revenue hearing officer to determine two things:

  1. Was there probable cause to arrest the person for DWI at the time they were placed under arrest; and
  2. Was there a legal, valid breath test with results over the legal limit

Both of those elements must be met to allow the State of Missouri to suspend a person’s driver’s license for a breath test that results in a blood alcohol content over the legal limit.

The first element, whether there was probable cause or not at the time of arrest, is usually based on a list of factors including:

  • Driving observations
  • The police officer’s general observations of the suspect,
  • Slurred speech,
  • Odor of alcohol,
  • Eye observations,
  • Field sobriety tests – these are one of the main things that the police officers utilize to determine whether there is probable cause to arrest a person for driving while intoxicated

All observations made prior to the person being placed under arrest for DWI can be used in the probable cause determination. However, anything observed or said after the arrest decision is made cannot be considered for whether there was probable cause at the time of arrest, and this includes the breath test. A breath test over the legal limit does not necessarily mean that the police officer had probable cause at the time of the arrest to arrest the person for DWI.

The second factor—if there’s a legally valid breath test over the legal limit—includes an examination that includes much more than just the number the breath test machine displayed. If somebody blows an .078 or an .079, the person’s license cannot be suspended.

Most challenges to the breath test will come on one of two fronts:

  1. Whether there was a problem with the administration of the breath test by the police officer, and
  2. Whether there were problems with the calibration or functioning of the breath test machine

The second type of challenge generally comes from the maintenance report. Breath test machines in Missouri must have maintenance completed within 35 days before the breath test. If it has been more than 35 days since the last time the breath test machine was maintained and calibrated, then the breath test is invalid. If there were problems with the maintenance report, then the breath test is invalid. There are many challenges to the breath test itself that have nothing to do with whether the person was drunk when the test was administered. This means there are many ways to get the breath test excluded from evidence, whether the person taking the breath test was drunk or not.

St. Louis DWI Lawyer Jason Korner

If you or a loved one has been arrested for Driving While Intoxicated, then please contact our office today at 314-409-2659 or click here to fill our the contact form. The days after an arrest are scary, but the scariest part is the anxiety from not knowing what to expect. Let Mr. Korner answer all of your questions, and help you start moving forward with your defense.