Section 1.16 Must Be Under Arrest (for Those Over 21 Years of Age)

• Library: DWI 2014

In a chemical refusal revocation trial, the court must find that a person over 21 years of age was in fact arrested. Section 577.041.4(1), RSMo Supp. 2012. The arrest must have occurred before the driver refused to submit to a chemical test; otherwise, the refusal does not form a basis for the license revocation. Collette v. Dir. of Revenue, 717 S.W.2d 551 (Mo. App. W.D. 1986).

“[A]rrest” is defined as “an actual restraint of the person of the defendant, or by his submission to the custody of the officer, under authority of a warrant or otherwise.” Section 544.180, RSMo 2000. “An individual submits to the custody or authority of the officer when he is told that he is under arrest and assents to the directions of the arresting officer . . . .” Minor v. Dep’t of Revenue, 136 S.W.3d 825, 827 (Mo. App. E.D. 2004) (citing State v. Nicholson, 839 S.W.2d 593 (Mo. App. W.D. 1992)). In Minor, the Department of Revenue (the Department) did not...