At some point during your arrest, the police officer likely asked if you would submit to a breath test. Usually you are informed that if you refuse, your license will be suspended for a year, but if you blow, even if you blow over the limit (0.08 in Missouri), it will only be suspended for a month. This tends to make many agree to take the test. Assuming your results were higher than the legal limit all hope is not lost. You have the right to file for an administrative hearing within 15 days of getting the notice. The administrative hearing is a fairly informal process and, in many cases, is conducted over the phone. You may have a lawyer present for this hearing or you may explain your position on your own. If you lose this hearing, you are then entitled to file a lawsuit, called a trial de novo, in the county in which you were arrested. A state court judge will be appointed to hear your arguments and will determine if the suspension is proper.
Suspension with Refusal
If you refused to submit to a breath test you were likely provided with a notice indicating that your license will be suspended for a year. The notice also provides that you may file a lawsuit to request a judge review this suspension. The key distinction between taking and refusing the test matters as most of the time you are able to get a Stay Order permitting you to continue to drive while you contest the suspension due to refusal. Additionally, there are often negotiations that take place between the parties in a refusal case that can prevent any suspension from occurring. If no deal can be agreed upon, the judge would hear a trial on the issue. If you prevail, the suspension never happens and the issue is removed from your driving record. If you lose, the one year suspension begins on the date of the judge's order. Having a lawyer who understands the elements that must be proven at a hearing is obviously very important.
Length of Possible Suspensions
If you do not contest the suspension after submitting to a breath test or if you lose your trial de novo, your license is suspended for 30 days. After that time, you are eligible to receive a hardship license permitting you to attend school or work. The hardship period is an additional 60 days. After the 90 days you are able to get your license reinstated provided you complete a number of steps required by the Department of Revenue. If you lose your license after a refusal to submit to a breath test, you will lose your license for a year. However, if you have prior convictions for alcohol related driving offenses, the suspensions can be far longer. In some cases you can lose your license for 10 years. Prior convictions can also have a huge impact on how the criminal side of your DWI is resolved.
To Blow or Not To Blow
The most common question asked is if you should refuse to blow when asked by a police officer. Unfortunately, there are no easy answers. A breath test can keep you from being charged if you are under the legal limit. However, it can work against you in the criminal DWI case as evidence of intoxication. It will likely also lead to the 30 day suspension. Conversely, the refusal is not as bad for a criminal trial, although a judge or jury would get to know about it. If it is a first offense, a refusal could also allow you to keep driving while the case is negotiated and could even result in no suspension of your license. Clients seem to be far more at ease with the progression of their criminal and administrative cases when they refuse to blow on a first offense DWI. As each case is different you are allowed to call an attorney before making this decision and most defense lawyers are available by cell anytime so you can get advice before making this decision.
Additional resources provided by the author
The Missouri Department of Revenue's website does a very good job explaining the law regarding DWI cases. I have included the link in this Guide.
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