SIR/MA’AM,
HAVE YOU BEEN DRINKING?

Missouri DWI- Legal Basics

By Joseph Passanise & Scott Pierson

Overview

  1. Environment / Presumptions / Myths
  2. Rules of the Road (Select statutes & case law)
  3. Three Parts to a DWI
  4. The Stop
  5. Probable Cause for Arrest
  6. Post Arrest (To Blow or Not to Blow)
  7. Pre-Arrest / Post Arrest Search of the Automobile
  8. Miranda- Does “She” Apply?
  9. Department of Revenue (DOR) & Your License

Environment

  • Aggressive Enforcement
  • Saturation Patterns
  • Vampire Counties

Presumptions

  • Usually two people involved in a DWI case…
    • ONE of which was drinking!
  • Of the two…
    • ONE of which is more Pre-Disposed to deceive.

Myths

  • I was stopped for a DWI!
  • Need .08 BAC to make a DWI!
  • The PBT doesn’t count!
  • I wasn’t read “My” Miranda Rights, so the case should be thrown out!
  • Refusing to give a breath sample means police can’t obtain my BAC!
  • I was stopped on private property, so I can’t be convicted of a DWI!
  • Law Enforcement are the ONLY experts regarding intoxication!

Misdemeanor that can send YOU to prison!

  • First Offense (Class B Misdemeanor)
    • Up to six (6) months in the county jail and/or up to a $500.00 fine
  • Second Offense within 5 years (Class A Misdemeanor, “Prior Offender”)
    • Up to one year in the county jail and/or up to a $1000.00 fine
  • Third Offense (Class B Felony, “Persistent Offender”)
    • Up to four (4) years in prison (or 1 year in county jail) and/or up to a $5000.00 fine. Lose license for 10 years, only can get a hardship license through DWI Court Program
  • Fourth Offense (Class D Felony, “Aggravated Offender”) 
    • Up to seven (7) years in prison (or one year in the county jail) and/or up to a $5000.00 fine.  Mandatory minimum of sixty (60) days imprisonment before being eligible for probation or parole
  • Fifth Offense or More (Class C Felony, “Chronic Offender”) 
  • Not less than five years nor more than 15 years in prison.  Mandatory minimum of two (2) years imprisonment before being eligible for probation or parole.

Rules of the Road: Select Statutes to Know

  • RSMo § 577.010: A person commits the crime of “driving while intoxicated” if he operates a motor vehicle while in an intoxicated or drugged condition.
  • RSMo § 577.012: A person commits the crime of “driving with excessive blood alcohol content” if such person operates a motor vehicle with eight-hundredths of one percent (.08) or more by weight of alcohol in such person’s blood.
  • RSMo § 577.037: If there was eight-hundredths of one percent or more by weight of alcohol in the person’s blood, this shall be prima facie evidence that the person was intoxicated at the time the specimen was taken.
  • RSMo § 577.037. 5(3): There is substantial evidence of intoxication from physical observations of witnesses or admissions of defendant.
  • State v. Schroeder 330 SW (Mo Banc. 2011)
    • A person is in an intoxicated condition when, “his use of alcohol impairs his ability to operate an automobile.”
  • State v. Seitz 384 SW 3d (Mo Ap SD 2012)
    • In absence of chemical test, government meets burden from witness based on observations.
  • State v. Edwards 280 SW 3d 184 (Mo Ap ED 2009)
    • It is the FACT, not the degree of intoxication
    • RSMo § 577.037.5 (3)
    • Substantial Evidence

Law Enforcement Interaction

  • THE STOP
    • What was the reasoning for being pulled over?
    • Was there reasonable suspicion?
    • Was there probable cause for a stop?
  • PRE-ARREST CONSENT/SEARCH
    • Was there consent?
    • What was the reason for the stop?
    • Did the officer go outside scope of the stop?
    • Did officer need probable cause for search?
  • POST-ARREST CONSENT/ SEARCH
    • Car Inventory Search
    • Search Incident to Arrest
    • When and where was Miranda given?

The Stop: Issues to Consider

  • MISTAKE OF LAW
    • Facts
      • Officer’s error of law in initiating traffic stop was an objectively reasonable mistake of law, and thus, officer had reasonable suspicion for traffic stop; while officer stopped vehicle because one of its brake lights was out, and a North Carolina court later determined that a North Carolina statute, requiring “a stop lamp” to be functional, required only a single working brake light.
    • Findings
      • A traffic stop for a suspected violation of law is a “seizure” of the occupants of the vehicle and therefore must be conducted in accordance with the Fourth Amendment.
      • Reasonable suspicion, as required for a traffic stop or an investigatory stop, can rest on a reasonable mistake of law.
    • Heien v. North Carolina, 135 S.Ct. 530 (2014).
  • USE OF DRUG DOGS
    • Police may not extend an otherwise-completed traffic stop, absent reasonable suspicion, in order to conduct a dog sniff.
    • Like a Terrystop, the tolerable duration of police inquiries in the traffic-stop context is determined by the seizure’s mission to address the traffic violation that warranted the stop, and attend to the related safety concerns.
    • Rodriguez v. United States, 135 S.Ct. 1609 (2015)
  • ANONYMOUS TIPS
    • An officer who already has a reasonable suspicion of drunk driving from an anonymous tip, need not surveil a vehicle at length in order to personally observe suspicious driving, before conducting a traffic stop.
    • Navarette v. California, 134 S.Ct. 1683 (2014)
  • Unusual or Erratic Operations of Vehicle: State v. Malaney, 871 S.W.2d (Mo. App. S.D. 1994).
    • The police officer’s observations of “unusual conduct” (or in the case of a traffic stop, “unusual operation”) must lead the officer to reasonably conclude that criminal activity is afoot.1This is particularly important to remember when the prosecuting attorney or judge wants to justify the traffic stop based merely on “unusual” driving conduct but cannot point out any link to possible criminal activity
  • Officer witnesses traffic violation or law violation. State v. Lloyd, 326 S.W.3d 908 ( Mo. App. W.D. 2010).

Ways to Establish P/C for a DWI Arrest

  1. Portable Breath Test: Can be used to show presence of alcohol but can’t be used to prove intoxication.
  2. Officers Observations: Driving, odor, eyes, speech, unusual actions etc.
  3. Non-standardized Field Sobriety Tests: Finger-to-Nose Field Sobriety Test, Rhomberg Balance Field Sobriety Test, Finger Count Field Sobriety Test, Alphabet/Counting test
  4. Standardized Field Sobriety Tests
    1. Horizontal Gaze Nystagmus Test
      1. Several different kinds of nystagmus exist, only some of them influenced by alcohol. However, the test given at roadside in a DUI investigation is a test of “horizontal gaze nystagmus.”
    2. Walk & Turn Test
      1. The walk and turn test is a “divided attention” standardized field sobriety test.11 A divided attention test essentially involves splitting the attention of a suspected DUI driver between mental and physical tasks.
    3. One-Leg Stand Test
      1. The one-leg-stand DUI field sobriety test is the second “divided attention” test among the three standardized field sobriety tests.

Horizontal Gaze Nystagmus Test (HGN)

  • Horizontal gaze nystagmus refers to an involuntary jerking of the eyes as the eyes gaze toward the side. In addition to being involuntary, the person experiencing the nystagmus is unaware of its occurrence.
  • During the administration of the horizontal gaze nystagmus field sobriety test, the officer instructs the suspect to follow (with his eyes) a stimulus to the left and to the right.
  • Officer is Looking for Three Things:
    1. Lack of Smooth Pursuit
    2. Sustained nystagmus at maximum deviation
    3. Onset of nystagmus before 45 degrees angle.
  • According to the National Highway Transportation Safety Administration (NHTSA), studies have revealed the HGN Test to be 77% reliable in determining whether a driver has a blood alcohol concentration above .10.

Walk & Turn Test

  • The walk and turn test is also sometimes referred to as the nine-step test, nine step walk turn, DUI straight line test, or DUI walk the line test.
  • During the walk and turn test, the suspect is ordered to:
    • Take nine heel-to-toe steps on a real or imaginary line,
    • Pivot around, and
    • Take nine heel-to-toe steps back
  • While the officer observes the individual, he/she watches for eight clues that may indicate impairment. If officers observes two clues that is indicia of impairment:
    • Keeps his or her balance during instructions
    • Starts too soon
    • Stops while walking
    • Touches heel-to-toe
    • Steps off line
    • Uses arms to balance
    • Performs improper turn or turns incorrectly
    • Takes an incorrect amount of steps

One-Leg Stand

  • During the one-leg-stand DUI field sobriety test, the officer instructs the suspect to:
    1. Raise his/her foot about six inches off the ground
    2. Hold still in that position
    3. Count from 1001 – 1030 look down at his/her foot
  • While the officer observes the individual, he/she watches for four clues that may indicate impairment.  These clues include whether or not the suspect:
  1. Sways
  2. Uses his/her arms to balance
  3. Hops, and/or
  4. Puts his/her foot down

Post Arrest: To Blow or Not To Blow?

  • Tests permitted
    • Blood, breath or urine tests may be requested with up to two samples in any combination as directed by law enforcement.
  • Type of advisement required
    • The arresting officer is required to inform the subject of the implied consent law requirements, including that the subject is under arrest for DWI or BAC, the type of test or tests requested, the penalties for refusing testing (loss of license for one year), and that evidence of the refusal may be used against them in prosecution of the charge in court.
    • Request to speak to an attorney
    • Must be given 20 minutes
  • Judgment Call
    • How much has the client had to drink?
    • Warrant for blood? (Greene and Christian County-Vampire Counties)
    • How old are they?
    • How many priors?

Pre-Arrest Search of the Automobile

  • PROTECTIVE SWEEP
    • If the officer reasonably believes an occupant in the vehicle that has been validly stopped is dangerous and may gain access to a weapon.
    • State v. McFall, 991 S.W.2d 671 (Mo.App.1999)
  • PROBABLE CAUSE
    • Officer has probable cause to believe items subject to seizure located in car. May conduct a search of compartments and containers within the vehicle.
    • Probable cause is defined as reasonable belief that it is more probable than not that the vehicle contains illegal property.
    • Can search every part of the vehicle that may conceal an object or search.
  • CONSENT (Good luck!)
    • Voluntariness of consent. Ex- If officer states they don’t need a warrant, but in fact need a warrant the consent was not voluntary.
    • Party consenting: Critical factor considered by the courts in these scenarios is whether the owner/passenger objected to the search.
    • Apparent Authority: Happens when officer conducts a search of a vehicle based upon the consent of a third party whom the officer, at the time of the search, reasonably, but erroneously, believed possessed common authority over the vehicle.
  • SCENARIOS
    • Defendant removed from car and officer searches without consent for drugs.
    • Cell phone search
      • Under search incident to arrest exception, interest in preventing destruction of evidence did not justify dispensing with warrant requirement before officers could search digital data on arrestees’ cellphones.
      • Interest in protecting police officers’ safety did not justify dispensing with warrant requirement before officers could search digital data on arrestees’ cell phones. Need a warrant to search a phone in most situations.
    • Riley v. California, 134 S.Ct. 2473 (2014)
    • Backpacks / Suitcase
    • Books / Notebooks (Drug Notes)
  • DETERMINING WHETHER SOMEONE IS IN CUSTODY
    • Missouri has adopted a six-part test for determining whether someone is in custody. Was the suspect informed at the time of questioning that the questioning was voluntary, that the suspect was free to leave or request the officers to do so, or that the suspect was not under arrest?
      • Did the suspect possess unrestrained freedom of movement during questioning?
      • Did the suspect initiate contact with authorities or voluntarily acquiesce to official requests to answer questions?
      • Were strong arm tactics or deceptive stratagems employed during questioning?
      • Was the atmosphere police dominated?
      • Was the suspect placed under arrest at the termination of questioning?
    • State v. Werner, 9 S.W.3d 590, 595 (Mo. banc 2000) citing United States v. Griffin, 922 F.2d 1343 (8th Cir.1990)

Miranda: When Does ‘She’ Apply?

  • Only Applies During Pre-Arrest Conversation
  • Not Free to Leave & Incriminating
  • When Do You Get an Attorney
  • Don’t Lie If Talking
  • Silence Can Be Admissible!
  • Must Be Non-Custodial Police Questioning
  • MUST EXPRESSLY INVOKE
  • MUST INVOKE VERBALLY
  • Salinas v. Texas, 133 S. Ct. 2174 (2013)

DOR & Your License

  • Administrative
    • If you are arrested for driving with a blood alcohol content of .08 percent or higher, the offense is processed administratively as well as criminally.
    • Minors arrested or stopped with .020% or higher blood alcohol content are also subject to the administrative sanctions under sections 302.500 through 302.540
    • The effective date of the suspension or revocation is 15 days after the arrest or 15 days after the hearing decision is mailed from the Department of Revenue.
    • If a client loses their administrative hearing they lose their license for 90 days (30 day hard loss, 60 day limited driving privilege, or can get interlock for 90 days)
    • CDL Effect
  • Refusal
    • Missouri’s implied consent law requires clients to submit to an alcohol and/or drug test when requested by a law enforcement officer. If clients refuse to submit to the test, their driving privilege is revoked for one year.
    • The arresting officer will take possession of any valid Missouri driver license the driver has in his or her possession and issue a 15-day permit, if applicable. You may file a petition for review in the circuit court of the county of arrest.
    • If the court issues a stay order, the driver may continue driving on that stay order until the case is settled.
    • If the court overturns the arrest, the revocation is canceled and the license is returned, if applicable.
  • Convictions
    • A first-time DWI, DUID, or BAC conviction results in a 90-day suspension.
    • Second alcohol- or drug-related traffic conviction, regardless of the length of time between convictions, you will normally receive a 1-year revocation for accumulation of points.
      • Convicted a second time for an alcohol- or drug-related offense within a five-year period, client may also receive a 5-year license denial
    • Convicted three or more times of an alcohol- or drug-related traffic offense, you will receive a 10-year license denial.