Section 5.10 License Revocation for Refusal of Chemical Testing

• Library: DWI 2014

Under Missouri’s implied consent law:

1. Any person who operates a motor vehicle upon the public highways of this state shall be deemed to have given consent to, subject to the provisions of sections 577.019 to 577.041, a chemical test or tests of the person’s breath, blood, saliva or urine for the purpose of determining the alcohol or drug content of the person’s blood pursuant to the following circumstances:

(1) If the person is arrested for any offense arising out of acts which the arresting officer had reasonable grounds to believe were committed while the person was driving a motor vehicle while in an intoxicated or drugged condition; or

(2) If the person is under the age of twenty-one, has been stopped by a law enforcement officer, and the law enforcement officer has reasonable grounds to believe that such person was driving a motor vehicle with a blood alcohol content of two-hundredths of one percent or more by weight; or

(3) If the person is under the age of twenty-one, has been stopped by a law enforcement officer, and the law enforcement officer has reasonable grounds to believe that such person has committed a violation of the traffic laws of the state, or any political subdivision of the state, and such officer has reasonable grounds to believe, after making such stop, that such person had a blood alcohol content of two-hundredths of one percent or greater;

(4) If the person is under the age of twenty-one, has been stopped at a sobriety checkpoint or roadblock and the law enforcement officer has reasonable grounds to believe that such person has a blood alcohol content of two-hundredths of one percent or greater;

(5) If the person, while operating a motor vehicle, has been involved in a motor vehicle collision which resulted in a fatality or a readily apparent serious physical injury as defined in section 565.002, RSMo, or has been arrested as evidenced by the issuance of a uniform traffic ticket for the violation of any state law or county or municipal ordinance with the exception of equipment violations . . .; or

(6) If the person, while operating a motor vehicle, has been involved in a motor vehicle collision which resulted in a fatality or serious physical injury as defined in section 565.002, RSMo.

The test shall be administered at the direction of the law enforcement officer whenever the person has been arrested or stopped for any reason.

Section 577.020.1, RSMo Supp. 2012.

Although a person has a right to refuse to submit to a chemical test, the driver does so at the risk of having the driver’s license revoked. See § 577.041, RSMo Supp. 2012. Evidence of the refusal is admissible in court in the criminal case, and the person’s driver’s license shall be immediately revoked. Section 577.041.1. Upon refusal, the officer is required to serve the notice of license revocation personally on the person and take possession of any driver’s license held by that person. Id. The officer is required to make a sworn report to the Department of Revenue that the person refused the officer’s request to submit to chemical tests. Section 577.041.2. The person’s driver’s license is then revoked for a period of one year. Section 577.041.3.

The Eastern District of the Missouri Court of Appeals decided an important case touching on the implied consent law and a search warrant to obtain a blood sample. State v. Smith, 134 S.W.3d 35 (Mo. App. E.D. 2003). In Smith, the driver was arrested for DWI. The driver refused to submit to a blood, breath, or urine test. The arresting officer applied for a search warrant for the driver’s blood and urine on the basis that the blood or urine test results would be evidence of intoxication pertinent to the charge of DWI. A circuit judge issued a search warrant, and the driver’s blood was taken in accordance with the search warrant. The driver’s motion to suppress the blood test result was sustained by the trial court on the grounds that it violated § 577.041.1, then RSMo Supp. 2003, which stated that, if a person refuses a chemical test, “none shall be given.” The State filed an interlocutory appeal. The court of appeals reversed, holding that § 577.041.1 prohibits warrantless tests in accordance with Chapter 577, RSMo, but does not prohibit a court from issuing a search warrant to obtain a blood sample for chemical testing to determine impairment by alcohol and/or drugs.

In State v. McNeely, 358 S.W.3d 65 (Mo. banc 2012), the Supreme Court of Missouri addressed the issue of whether a blood sample could be taken without a warrant after the driver refused an implied consent law request for a blood test. The facts in McNeely were typical of a routine case. The driver was stopped for a traffic violation and exhibited standard signs of intoxication. After performing poorly on standardized field sobriety tests, the driver was arrested and refused a breath test. The driver was taken to a hospital, and the driver refused to submit to a blood test. Without the driver’s consent and without a search warrant, the officer directed a hospital employee to draw the driver’s blood, which subsequently tested above the legal limit. The driver’s motion to suppress the blood test results was sustained by the trial court. The State filed an interlocutory appeal, relying in large part on Schmerber v. California, 384 U.S. 757 (1966). The Supreme Court of Missouri noted that Schmerber did not create a blanket exception to the search warrant requirement, noting that, in Schmerber, there were “special facts” that allowed a nonconsensual warrantless blood draw as an exigent circumstance to the search warrant requirement. In McNeely, the Supreme Court of Missouri stated that no “special facts” existed and in a routine DWI case a search warrant would be required. The determination of whether “special facts” exist will be made on a case-by-case basis but would require exigent circumstances beyond the normal dissipation of alcohol in the blood over the passage of time.

If the driver’s license is revoked in accordance with § 577.041, the driver may request a hearing in court by filing a civil petition. Section 577.041.4. The revocation goes into effect 15 days after the arrest, § 577.041.1; the petition must be filed within 30 days of the arrest, § 302.311, RSMo 2000. The petition must be filed in the county in which the arrest or stop occurred. Section 577.041.4. The civil case is heard by the judge without a jury. At the hearing, the court is limited to a determination of the following:

(1) Whether or not the person was arrested or stopped;

(2) Whether or not the officer had:

(a) Reasonable grounds to believe that the person was driving a motor vehicle while in an intoxicated or drugged condition; or

(b) Reasonable grounds to believe that the person stopped, being under the age of twenty-one years, was driving a motor vehicle with a blood alcohol content of two-hundredths of one percent or more by weight; or

(c) Reasonable grounds to believe that the person stopped, being under the age of twenty-one years, was committing a violation of the traffic laws of the state, or political subdivision of the state, and such officer had reasonable grounds to believe, after making such stop, that the...