MISSOURI DUI / DWI CIVIL LICENSE SUSPENSION HEARING PROCEDURES FOR REFUSAL OF A CHEMICAL TEST; DRIVER'S MOST COMMON QUESTIONS IN A MISSOURI CHEMICAL TEST REFUSAL CASE

There are three Main points of contention in a license suspension hearing for a refusal of a chemical test in the civil portion of a Missouri DUI / DWI case.

I. THE DRIVER MUST BE PLACED UNDER ARREST

The first requirement that the state must show in a Missouri refusal hearing is that the driver was actually under arrest. A driver must be under arrest in order to be found to have refused. A refusal prior to arrest will not sustain a revocation of the driver's license. Collette v. Director of Revenue, 717 S.W.2d 551, 557 (Mo.App. 1986). No particular words are necessary to effectuate an arrest. So long as a police officer has taken control of the person's movements he or she is under arrest. State v. Ikerman, 698 S.W.2d 902, 905 (Mo.App. 1985).

An arrest by a police officer in a Missouri DUI / DWI case may not be proper if the officer has no indication of a submission by the driver to the officer's authority to arrest. In such a case, the Director of Revenue's revocation will not be valid. Callendar v. Director of Revenue, 44 S.W.3d 866 (Mo. App. 2001). While an arrest requires actual restraint or submission by the officer on the driver, there is no need to restrain a driver who is immobilized from an accident where it has been announced the driver is under arrest. Saladino v. Director of Revenue, 88 S.W.3d 64 (Mo.App. W.D. 2002).

It is important to note that reasonable suspicion for the initial stop of the driver's vehicle is not an issue in a civil refusal case, and the criminal exclusionary rule does not apply in civil cases. Sullins v. Director of Revenue, 893 S.W.2d 848 (Mo.App. S.D. 1995); Green v. Director of Revenue, 745 S.W.2d 818 (Mo.App. W.D. 1988). This means that the Director of Revenue can suspend the driver's license for refusal of a chemical test even where the initial stop by the officer of the driver's vehicle is unlawful, provided that all of the Director of Revenue meets all of the other requirements for suspending the driver's license for refusal.

A valid arrest of the driver in a refusal hearing context can be based on grounds other than actual arrest for DUI / DWI as long as the arrest of the driver arises out of the same acts which give the officer proper grounds to believe the driver is involved with DWI. The driver does not have to be arrested for DWI to support a refusal. Westhoelter v. Director of Revenue, 783 S.W.2d 150 (Mo.App. E.D. 1990).

II. THERE MUST BE REASONABLE GROUNDS TO ARREST IN A MISSOURI CIVIL REFUSAL CASE

The second requirement that the state must show in a Missouri refusal hearing is that the officer had reasonable grounds to arrest the driver. Reasonable grounds is synonymous with probable cause. Wilcox v. Director of Revenue, 842 S.W.2d 240 (Mo.App. 1992); Tuggle v. Director of Revenue, 727 S.W.2d 168 (Mo.App. 1987). Reasonable grounds must exist at the time of the arrest; cannot either based upon, or refuted by, information obtained after arrest. Howard v. Director of Revenue, 716 S.W.2d 912 (Mo.App. E.D. 1986).

Proof that the person was driving while intoxicated may be direct or circumstantial. Stenzel v. Director of Revenue, 536 S.W.2d 163, 168 (Mo.App. 1976). Example: if a driver admits that he was driving a vehicle it is admissible to prove the arresting officer had reasonable grounds to arrest him. Tuggle v. Director of Revenue, 727 S.W.2d 168 (Mo.App. 1987); Tolen v. Dept. of Revenue, 564 S.W.2d 601 (Mo.App. 1978); Webb v. Director of Revenue, 896 S.W.2d 517 (Mo.App. W.D. 1995).

The issue in a Missouri civil refusal to take a chemical test hearing is whether the officer had reasonable suspicion to believe the driver was operating while intoxicated, not whether he actually was driving. Hinnah v. Director of Revenue, 77 S.W.3d 616 (Mo. banc 2002); Kinsman v. Director of Revenue, 58 S.W.3d 27 (Mo.App. 2001) ("it may seem absurd that the statute would not allow the driver to contest the revocation simply on the grounds that the driver was not driving. Absurd or not, that is what the statute says.").

RSMo. Section 577.041 does not require the arresting officer to have reasonable grounds to arrest the driver prior to the initial stop, indicia of intoxication in the driver observed by officer after the initial stop will sustain a reasonable belief that the driver was driving the vehicle while intoxicated. Roadblocks or sobriety checkpoints stops are also permissible to establish reasonable grounds to arrest for the purposes of a Missouri refusal to take a chemical test hearing. Gelsheimer v. Director of Revenue, 845 S.W.2d 107 (Mo.App. 1993).

III. THE DRIVER MUST HAVE ACTUALLY REFUSED THE CHEMICAL TEST

The third requirement that the state must show in a Missouri refusal hearing is that the driver actually refused a chemical test. The Missouri courts have held that any intentional failure by the driver to do what is necessary for the performance of a chemical test after a Missouri DUI / DWI arrest is a refusal. Spradling v. Deimeke, 528 S.W. 2d 759, 766 (Mo. 1975). The driver's does not have to make a "knowing" refusal, for him or her to have legally refused. Lyons v. Director of Revenue, 36 S.W.3d 409 (Mo.App. E.D. 2001).
The driver's inability to remember events surrounding a his or her refusal is irrelevant to the question of whether the driver actually refused the chemical test. Berry v. Director of Revenue, 885 S.W.2d 326 (Mo. banc 1994); Cartwright v. Director of Revenue, 824 S.W.2d 38 (Mo.App. 1991).

In a Missouri DUI / DWI case, a driver's refusal to submit to a chemical test can occur in many non-verbal ways. Failing to blow properly into the mouthpiece is a refusal. Sutton v. Director of Revenue, 20 S.W.3d 918 (Mo.App. S.D. 2000); Stewart v. McNeill, 703 S.W.2d 97 (Mo.App. W.D. 1985); Askins v. James, 642 S.W.2d 383 (Mo.App. 1982); Benson v. Director of Revenue, 937 S.W.2d 768 (Mo.App. W.D. 1997). Where a driver blows around the mouthpiece after giving consent to a chemical test, it is deemed by the Missouri courts a refusal. Askins v. James, 642 S.W.2d 383, 386 (Mo.App. 1982).

Similarly, even where a driver has asthma or other similar physical defects that might make it difficult to perform the chemical breath test; the court is not bound by the driver's unilateral claim of an asthma attack, and failure to perform the chemical test can be deemed a refusal even where the driver attempts to take the breath test. White v. Director of Revenue, 784 S.W.2d 861 (Mo.App. 1990).

If the driver places conditions on whether or not he or she will consent to a chemical test, it may be deemed a refusal. Spradling v. Deimeke, 528 S.W.2d 759 (Mo. 1975); Rains v. King, 695 S.W. 2d 523 (Mo.App. 1985); Bach v. Director of Revenue, 764 S.W.2d 742 (Mo.App. 1989). However, if the driver places a condition on whether or not he or she will consent to a chemical test and the officer agrees to the condition, but then the officer reneges on the agreement, the revocation against the driver will not be valid. Lowery v. Spradling, 554 S.W.2d 555 (Mo. App. 1977) (officer agreed to wait for subject's employer, but then insisted on a chemical test before the employer arrived).

If a driver refuses to agree to pay for a blood test it does not constitute a refusal to take a chemical test. Sparling v. Director of Revenue, 52 S.W.3d 11 (Mo.App. E.D. 2001). Similarly, the driver refusing to sign a hospital's release form also does not constitute a refusal of a chemical test. Woffard v. Director of Revenue, 868 S.W.2d 142 (Mo.App. E.D. 1993).

An implied consent warning given by the officer to the driver after a refusal to a chemical test in a Missouri DUI / DWI case invalidates the refusal. Hinton v. Director of Revenue, 990 S.W.2d 207 (Mo.App. W.D. 1999).

RIGHT TO COUNSEL/ REQUEST TO SPEAK WITH AN ATTORNEY

When a driver is arrested for DUI / DWI in Missouri, the driver has the right to 20 minutes to speak with an attorney after the implied consent is read by the officer and the driver is asked to consent to a chemical test only if the driver specifically asks to speak with an attorney. A driver may be deemed to not have refused a chemical test if not given 20 minutes to contact an attorney after being given the implied consent warnings. McMaster v. Lohman, 941 S.W.2d 813 (Mo.App. 1997); Albrecht v. Director of Revenue, 833 S.W.2d 40 (Mo.App. 1992).

If the driver asks to speak to an attorney, he or she must be given 20 minutes to contact an attorney after the implied consent warning is read, unless the driver affirmatively abandons attempts to contact counsel. Lorton v. Director of Revenue, 985 S.W.2d 437 (Mo.App. W.D. 1999); Long v. Director of Revenue, 65 S.W.3d 545 (Mo.App. W.D. 2001). Note: If a driver requests to speak with an attorney and the officer then cites the driver for refusing the chemical test, it must be shown that the effort to speak with an attorney was abandoned or there must be a showing of futility in the driver's effort to contact the attorney if the driver is not given the full 20 minutes allowed by law before being cited for the refusal. Keim v. Director of Revenue, 86 S.W.3d 177 (Mo.App. E.D. 2002).

If the driver is cited for refusing a chemical test after requesting to speak with an attorney and the driver alleges at a refusal hearing that he or she was not given the full 20 minutes, the Director of Revenue must provide evidence that the driver was given the full 20 minutes for there to be a valid refusal. Keim v. Director of Revenue, 86 S.W.3d 177 (Mo.App. E.D. 2002).

The statutory right to contact an attorney is only triggered by a specific request by the driver to speak with a lawyer after the implied consent warning is read and submission to a chemical test is requested by the officer. Green v. Director of Revenue, 849 S.W.2d 658 (Mo.App. 993); State v. Foster, 959 S.W.2d 143 (Mo.App. 1998). The full 20 minutes are not required if driver abandons his attempts to contact an attorney. Witeka v. Director of Revenue, 913 S.W.2d 438 (Mo.App. 1995); Wall v. Holman, 902 S.W.2d 329 (Mo.App. 1995). The 20 minutes to contact an attorney begin when a driver is asked to take a chemical test and has opportunity to call; no additional 20 minutes required if implied consent warning is read to driver more than once. Wilmoth v. Director of Revenue, 903 S.W.2d 595 (Mo.App. 1995).

Where an officer remains nearby the driver during his or her attempts to call an attorney during the 20 minute period, it does not violate the statutory right to counsel. Clardy v. Director of Revenue, 896 S.W.2d 53 (Mo. App. 1995).

If the opportunity to contact counsel comes prior to the implied consent warning being read to driver, it must be shown that the driver was not prejudiced or the refusal will be deemed invalid. Brown v. Director of Revenue, 34 S.W.3d 166 (Mo.App. W.D. 2000); Glastetter v. Director of Revenue, 37 S.W.3d 405 (Mo.App. E.D. 2001).

Asking for an attorney after refusing the chemical test does not trigger the 20-minute rule. Eckenrode v. Director of Revenue, 994 S.W.2d 583 (Mo.App. S.D. 1999). However, sequence of events must be unambiguous. Mount v. Director of Revenue, 62 S.W.3d 597 (Mo.App. W.D. 2001). To trigger the 20-minute rule, the driver must specifically request to talk to an attorney not just "use the phone," or call "someone." If the driver later agrees to take the test it does not affect the refusal. Moody v. Director of Revenue, 14 S.W.3d 729 (Mo.App. E.D. 2000).

"TWO SUCH TESTS"

The officer may request any two tests of the driver's blood, breath or urine, in a DUI / DWI arrest in Missouri, although they rarely request two tests. However, the driver does not get to choose what type of chemical test he or she takes. Kiso v. King, 691 S.W.2d 374 (Mo.App. 1985); Williams v. Lohman, 996 S.W.2d 127 (Mo.App. W.D. 1999), i.e., if the officer requests a blood test the driver will be deemed to have refused if he or she says consent will be given for a breath test but not a blood test, or vice versa.

The reference to "two such tests" in the statute means two of the types of tests allowed, not merely two unsuccessful attempts to get a test result. Snow v. Director of Revenue, 935 S.W.2d 383 (Mo.App. 1996) (motorist subject to revocation for refusing blood test after three unsuccessful attempts to get a breath sample); State v. Rabe, 870 S.W.2d 453 (Mo.App. S.D. 1994) (incomplete tests do not count towards the two tests allowed in the statute).

A driver claiming to be too drunk to knowingly refuse a chemical test will not overturn a refusal revocation. Turner v. Director of Revenue, 829 S.W.2d 671 (Mo.App. 1992).

AN INDEPENDENT TEST AT THE DRIVER'S OWN EXPENSE

It is allowed under Missouri law for a driver to obtain an independent chemical test at their own expense so long as they first perform the test requested by the officer. The officer does not have to advise the driver of this right, and do not have to give the independent test unless the driver knows to ask for it, and does specifically ask for it.

While the driver may ask for an independent chemical test at his or her own expense, the officer is not required to assist the driver is obtaining such a test. Pierce v. Director of Revenue, 51 S.W.3d 888 (Mo.App. E.D. 2001).

OTHER NOTES ON MISSOURI REFUSAL CASES

A refusal of a portable breath test in the field pre-arrest does not trigger the implied consent law or act as a refusal under the statute. Justice v. Director of Revenue, 890 S.W.2d 728 (Mo.App. W.D. 1995); Baker v. Director of Revenue, 945 S.W.2d 589 (Mo.App. E.D. 1997).

The language of the refusal statute does not require that the driver be operating a vehicle on a public highway at the time of arrest in order to be subject to a revocation for refusing a chemical test. Bertram v. Director of Revenue, 930 S.W.2d 7 (Mo.App. W.D. 1996); Peeler v. Director of Revenue, 934 S.W.2d 329 (Mo.App. E.D. 1996) (both cases involved operation of a vehicle on a parking lot).

An officer is without authority to administer a chemical test once the driver has refused to take the test, even if the driver later changes his or her mind and requests to take the test. Blanchard v. Director of Revenue, 877 S.W.2d 172 (Mo.App. W.D. 1994); Eckenrode v. Director of Revenue, 994 S.W.2d 583 (Mo. App. S.D. 1999).

DRIVER'S MOST COMMON QUESTIONS IN A MISSOURI CHEMICAL TEST REFUSAL CASE

Do I have to file proof of SR-22 insurance for a refusal in my Missouri DUI / DWI case?

Since a driver's license revocation in Missouri for a refusal of a chemical test is not a revocation made under RSMo. Chapter 302, the SR-22 requirement does not apply, and the driver does not have to file proof of SR-22 insurance. However, if the driver wishes to drive on a limited driving privilege after the first ninety (90) days of the one-year suspension for refusal is complete, he or she would have to file an SR-22 for the duration of the year-long limited driving privilege period.

Do I have a right to speak with an attorney in a refusal case?

If the driver, when requested to submit to a chemical test, requests to speak with an attorney, he or she shall be granted 20 minutes in which to attempt to contact an attorney. If after the expiration of 20 minutes the driver continues to refuse to submit to a chemical test it shall be deemed a refusal. RSMo. Section 577.041.

Why do I have two separate criminal and civil refusal hearings in my driver's Missouri DUI / DWI case?

Civil Administrative Refusal Hearings under RSMo. 577.041 are separate from any criminal proceedings arising from the same incident. A driver may still be revoked for refusal even if he or she is acquitted of DWI in the criminal portion of his or her Missouri DUI / DWI case. Tolen v. Missouri Department of Revenue, 564 S.W.2d 601, 602 (Mo.App. 1978).

Similarly, a determination of no probable cause for the arrest in the criminal portion of a driver's Missouri DUI / DWI case is irrelevant to the civil refusal portion of the case. Borchelt v. Director of Revenue, 806 S.W.2d 95, 101 (Mo.App. 1991). What this means is a driver can win and get the criminal portion of his or her case dismissed and still lose their license for one year in the civil refusal hearing for refusing a chemical test.

For my license suspension, can I get credit for time served on my license suspension for accumulation of points on my one-year civil refusal license suspension?

There is no credit given for time from "points" to a refusal. DUI / DWI and refusal to submit to a chemical test are separate violations, even when arising out of the same incident, and, therefore, result in separate periods of revocation or suspension. Brown v. Director of Revenue, 772 S.W.2d 398, 400 (Mo.App. 1989); Greenwood v. Director of Revenue, 5 S.W.3d 604 (Mo.App. 1999).

Who handles the civil administrative refusal portion of my Missouri DUI / DWI case?

RSMo. Section 577.041 or 302.311 requires county prosecutors to handle civil refusal hearings, but attorneys for the Director of Revenue may appear on these cases.

What are the consequences for refusal of a chemical test?

There is a one year revocation for every separate refusal offense. There is no driving retests required if the driver's license is not expired over six (6) month.

After my Missouri DUI /DWI case, can I get a limited driving privilege to go to work during my one-year driver's license refusal suspension?

Driver's who receive a one-year refusal suspension to their Missouri driving privilege are sometime eligible for a limited driving privilege after the first ninety (90) days of the one-year refusal suspension for first refusal offense. Driver's are ineligible for a limited driving privilege for any second or subsequent refusal offense, and they cannot drive at all for one full year.

I had a refusal suspension to my Missouri driver's license several years ago. Can the refusal now be taken off my driving record?

Expungement is not ever possible for a civil refusal of a chemical test in Missouri.