Refusal of a Breathalyzer
Throughout this section I will use the term “breath or other chemical test.” A police officer can ask for breath, blood, or urine, and he has the right to ask for any of those that he chooses, regardless of the circumstances. Now, he not only has the right to ask for one, but he has the right to ask for two. So, if a person consents to a breath test, but refuses a blood test, regardless of the results of that breath test, it is still a refusal under Missouri law. The police officer has the right to ask for two chemical tests, not just the one. However, that would be two different kinds of chemical tests – the officer cannot have the person take a breath test, and then ask for a second breath test. That is not part of Missouri law at this time.
If someone has been placed under arrest for DWI, and they are asked to submit to either a breath test or other chemical test by the arresting officer, and they refuse to do so, their license will be suspended for one year. During the first 90 days of that suspension, they will not be eligible for any kind of hardship or restricted driving privilege. However, after that first 90 days, there is the possibility of a restricted driving privilege for the remaining nine months of the suspension.
A person can challenge this suspension within the first 30 days after notice of the suspension, by petitioning against the Department of Revenue in the circuit court of the county where they were arrested. Even though 30 days are allowed to file a challenge to the suspension, the actual license suspension starts15 days after the notice of suspension. A stay order stays, or puts off, the suspension. This allows the driver to continue to drive, with full driving privileges, while the attorney challenging the suspension is able to:
- Gather the relevant information such as police reports and videos
- Discuss the case with the attorney for the Department of Revenue to explore any options for something called a Confession, which is discussed further below
- Schedule and conduct a hearing to determine whether there should be a suspension
Confessions to Avoid License Suspension
In some instances with a refusal of a chemical test (generally a breath test, but refusals of blood and urine tests are handled through the same process) in Missouri, there is the possibility that negotiations with the attorney for the Department of Revenue may result in no suspension for the driver and a driving record clean of any chemical refusal or license suspension. This is called a confession because the Department of Revenue confesses that the challenge to the suspension is valid. This is only a possibility when all of the three factors below is satisfied:
- The person is a first-time offender;
- There was no car accident; and
- It occurred in a county that allow for these negotiations
Historically, and at the time of this writing, the following counties allow for these negotiations: St. Louis County, St. Charles County, and Jefferson County. The City of St. Louis, Franklin County, and Boone County do not allow negotiations for a confession.
The Refusal Hearing Process
In counties where confessions are not allowed, or if one of the other requirements to be confession-eligible is not met, the only option is to have a hearing to determine if there will be a license suspension. The Department of Revenue must prove two elements at a refusal hearing:
- There was probable cause to place the person under arrest for DWI at the time they were placed under arrest; and
- There was a legal, valid refusal of the chemical test
The first element must be satisfied using only things that were observed or witnessed prior to the arrest. Any observations, admissions, or other evidence obtained after the arrest cannot be considered by the court when deciding whether the first element was met. Probable cause must be determined to exist at the time of arrest, using only the information available to the officer at the time of arrest. These are generally things like driving observations, general observations, and field sobriety tests that are covered in other areas of this book.
To satisfy the second element, the Department of Revenue has to prove the police officer followed all of the correct procedures for requesting the breath test or other chemical test. The most important of these procedures is that the implied consent law must be read verbally by the police officer to the person they are requesting to test. The implied consent law requires the following to be read:
- You are under arrest and I have reasonable grounds to believe you were driving a motor vehicle while you were in an intoxicated or drugged condition.
- To determine the alcohol or drug content of your blood, I am requesting you submit to a chemical test of your breath, blood, or urine (the officer will specify which specific test he is requesting instead of stating all three).
- If you refuse to take the test(s), your driver license will immediately be revoked for one year.
- Evidence of your refusal to take the test(s) may be used against you in prosecution in a court of law.
- Having been informed of the reasons for requesting the test(s), will you take the test(s)?
That list makes up the implied consent for Missouri, and it must be read in every case where there is a breath test or chemical test refusal. If the police officer does not read it to the person, then the refusal is not legally valid.
Prior to either taking or refusing the breath test, the person may ask to contact an attorney. If a person requests an attorney at any time while dealing with the police officer prior to refusing the breath or other chemical test, the police officer needs to give the person the opportunity to have 20 minutes to contact an attorney, or at least to try to contact an attorney. The courts have defined “try to contact an attorney” by requiring the police to make available to the person a phone and a phone book in order to try to contact the attorney. If the police officer does not provide the person with the 20 minutes, then the facts do not constitute a legally valid refusal. These are all areas where a driver can challenge a driver’s license suspensions for refusing to take a breath or chemical test. These are just some examples; there are many other ways to challenge the lawfulness and validity of a breath or chemical test refusal.
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.