MISSOURI FELONY DRIVING OFFENSES

CIVIL LICENSE CONSIDERATIONS TO A FELONY DRIVING OFFENSE IN MISSOURI

There are many things to consider when looking at the effect a criminal driving charge can have on a driver's right to drive in Missouri.

Regarding probation, the Department of Revenue only takes action on a driver's license from a criminal court proceeding if there is a conviction. If the criminal court suspends imposition of sentence on the criminal charge, there is no conviction, and the criminal charge will not affect the driving privileges. However, there may be administrative actions which affect the driving privilege independent of the criminal process.

Revocation for refusing a breath or blood test and administrative suspensions premised on failing a breath or blood test and administrative suspensions premised on failing a breath or blood test are the two most common administrative actions.

A conviction for any felony involving a motor vehicle mandates a one-year revocation. RSMo. Section 302.302(11). A conviction for involuntary manslaughter or two convictions of DWI within five years of each other mandates a five-year denial of driving privileges. RSMo. Section 302.060(10). More than two convictions relating to driving while intoxicated received at any time mandate a ten-year denial. RSMo. Section 302.060(9). NOTE: THESE THREE CONVICTIONS MAY ARISE FROM THE SAME INCIDENT. See Clare v. Director of Revenue, 64 S.W.3d 877 (Mo.App. E.D. 2002).

A hardship may not be granted if the driver has been convicted of a felony involving a motor vehicle. RSMo. Section 302.309(5)(b).

A hardship may not be granted on a five or ten year denial if the driver is otherwise not eligible, such as having been convicted of a felony. Hagan v. Director of Revenue, 968 S.W.2d 704 (Mo. banc 1998).

MISSOURI CRIMINAL FELONY DRIVING OFFENSES

The main criminal felony driving offenses in Missouri are: DWI Persistent Offender- RSMo. Section 577.023; Assault Second Degree- RSMo. Section 565.060(4); Involuntary Manslaughter- RSMo. Section 565.024; Murder Second Degree- RSMo. Section 565.021; Leaving the Scene of a Motor Vehicle Accident- RSMo. Section 577.060; Felony Driving While Revoked or Suspended- RSMo. Section 302.321; and Felony Operation of a Motor Vehicle Without a Proper License- RSMo. Section 302.020

DWI PERSISTENT OFFENDER-RSMo. 577.023

Persistent DWI Offender is a Class D Felony charge in Missouri. A persistent DWI offender in Missouri in one of the following:

A person who has pleaded guilty to or has been found guilty of two or more intoxication-related traffic offenses, where such two or more offenses occurred within ten years of the occurrence of the intoxication-related traffic offense for which the person is charged

Or

A person who has pleaded guilty to or has been found guilty of: involuntary manslaughter pursuant to RSMo. Section 565.024.1; assault in the second degree pursuant to RSMo. Section 565.060.1; assault of a law enforcement officer in the second degree pursuant to RSMo. Section 565.081.1(3); or driving under the influence of alcohol or drugs in violation of state law or a county or municipal ordinance, where the judge in such case was an attorney and the Defendant was represented by or waived the right to an attorney in writing.

For any DWI persistent offender offense in Missouri, the Court may not give a Suspended Imposition of Sentence (SIS) probation, and if a plea of guilty is entered or there is a finding of guilt, the driver will be convicted of a felony. RSMo. Section 577.023(4).

For this offense, the driver is tried by a jury, but the sentencing is by the Court, not by the jury. RSMo. Section 577.023 (13). At a jury trial, the facts of the driver's alleged persistent offender status shall be pleaded, established and found outside the jury's presence and prior to submission to the jury. RSMo. 577.023(6); State v. Cullen, 39 S.W.3d 899 (Mo.App. E.D. 2001).

No persistent offender shall be eligible for parole or probation until he or she has served a minimum of 10 days imprisonment, unless as a condition of such parole or probation such person performs at least 60 days of community service under the supervision of the court. RSMo. Section 577.023(4).

In determining whether the driver has three or more alcohol-related contacts involving a vehicle in a ten-year period, Suspended Imposition of Sentences (SISs) count, and are treated the same as convictions and may be plead as intoxication-related traffic offenses to establish persistent offender status. RSMo. Section 577.023(14).

ASSAULT SECOND DEGREE-RSMo. SECTION 565.060(4)

Assault in the Second Degree in Missouri is a Class C Felony. A driver commits the crime of Assault in the Second Degree in Missouri if he or she, while in an intoxicated condition or under the influence of controlled substances or drugs, operates a motor vehicle while in the State of Missouri, and, when so operating, acts with criminal negligence to cause physical injury to any other person than himself.

The term "criminal negligence" means failure to be aware of a substantial and unjustifiable risk that circumstances exist or a result will follow, and such failure constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation. RSMo. Section 556.061(6) & 562.016.

The term "physical injury" means physical pain, illness, or any impairment of physical condition. MAI-CR 3d 333.00.

If a driver is convicted of assault in the second degree in Missouri, the court may, at it's discretion, Suspend Imposition of Sentence (SIS).

For a charge of assault in the second degree in Missouri, unless the driver is a prior or persistent criminal offender, the jury imposes the sentence, not the court.

Typical defenses a Defendant may employ to the Missouri felony charge of Assault Second Degree are: Defendant was not the operator of the vehicle; Defendant was not intoxicated or under the influence at the time of the driving or the operation; Defendant did not operate the motor vehicle with criminal negligence, i.e., there is some explanation as to how the accident occurred which leads the jury to conclude the driver was not negligent; The person allegedly injured did not suffer a "physical injury."

There is a separate crime if the injured party is a law enforcement officer. RSMo. Section 565.082 (Class B felony).

INVOLUNTARY MANSLAUGHTER-RSMo. SECTION 565.024

Involuntary manslaughter is a Class C Felony in Missouri. A driver commits the crime of involuntary manslaughter, if he or she, while in an intoxicated condition, operates a motor vehicle in the State of Missouri, and, when so operating, acts with criminal negligence to cause the death of any person. "Criminal negligence" is defined the same as in the vehicular assault context above. RSMo. Section 556.061(6).
If a driver is convicted of involuntary manslaughter in Missouri, the court, in it's discretion, may Suspend the Imposition of Sentence (SIS). Unless the driver is a prior or persistent criminal offender, the jury imposes the sentence, not the court.

Typical defenses to felony charge of Involuntary Manslaughter are: Defendant was not the driver or operator of the vehicle; Defendant was not intoxicated or under the influence at the time of the driving or operation; Defendant did not operate the motor vehicle with criminal negligence; Some other intervening factor(s) caused the death of the other person such as medical malpractice in the treatment of the person's injuries.

MURDER SECOND DEGREE-RSMo. SECTION 565.021

Murder second degree in Missouri is a Class A Felony in Missouri. A person commits the crime of Murder in the Second Degree in Missouri if he or she commits or attempts to commit any felony, and, in the perpetration or the attempted perpetration of such felony or in the flight from the perpetration or attempted perpetration of such felony, another person is killed as a result of the perpetration or attempted perpetration of such felony or immediate flight from the perpetration of such felony or attempted perpetration of such felony.

This "felony murder" prosecution may be brought against a driver who has an accident where a death occurs and the driver is committing a felony offense such as the felony offense of DWI-Persistent Offender, the felony offense of Driving While Revoked-Persistent Offender, Felony Resisting Arrest By Flight, or Felony Leaving The Scene of an Accident.

This type of prosecution ups the ante considerably for the Defendant as this charge is a Class A felony, carrying a penalty range of 10-30 years or life. RSMo. Section 558.019. Since Murder in the Second is a dangerous felony as defined in RSMo. Section 556.061, the Defendant must serve 85% of any sentence he or she receives, if committed to the Department of Corrections. See State v. Pembleton, 978 S.W.2d 352 (Mo.App. E.D. 1998) for an excellent discussion of this topic.

LEAVING THE SCENE OF A MOTOR VEHICLE ACCIDENT-RSMo. SECTION 577.060

A person commits the crime of Leaving the Scene of a Motor Vehicle Accident when being the operator or driver of a vehicle in the highway or on any publicly or privately owned parking lot or parking facility generally open for use by the public and knowing that an injury has been caused to a person or damage has been caused to property, due to his culpability or to accident, he or she leaves the place of the injury, damage or accident without stopping and giving his name, residence, including city and street number, motor vehicle number and driver's license number, if any, to the injured party or to a police officer, or if no police officer is in the vicinity, then to the nearest police station or judicial officer.

This crime becomes a Class D felony if the accident resulted in physical injury to another party, or property damage in excess of one thousand dollars, or if the Defendant has previously pled guilty to or been found guilty of a violation of this section. Otherwise, it's a Class A Misdemeanor.

FELONY DRIVING WHILE REVOKED OR SUSPENDED-RSMo. SECTION 302.321

A person commits the crime of driving while revoked if he or she operates a motor vehicle on a highway when his or her license or driving privilege has been cancelled, suspended or revoked under the laws of the State of Missouri or any other state, and acts with criminal negligence with respect to knowledge of the fact that his or her driving privilege has been cancelled, suspended or revoked. This crime is usually a Class A Misdemeanor, but becomes a Class D felony under the following circumstances:

Any person with no prior alcohol-related enforcement contacts as defined in RSMo. Section 302.525, convicted of a fourth or subsequent time of driving while revoked or of a county or municipal ordinance of driving while revoked or suspended where the judge in such case was an attorney and the Defendant was represented by or waived the right to an attorney in writing, and where the prior three driving while revoked offenses occurred within 10 ten years of the date of the occurrence of the present offense and where the person received and served a sentence of ten days or more on such previous offenses.

Any person with a prior alcohol-related enforcement contact as defined in RSMo. Section 302.525 convicted of a third or subsequent time of driving while revoked or of a county or municipal ordinance if driving while suspended or revoked where the judge in such case was an attorney and Defendant was represented by or waived the right to an attorney in writing, and where the prior two driving while revoked offenses occurred within ten years of the date of the occurrence of the present offense and where the person received and served a sentence of ten days or more on such previous offenses.

Driving while revoked is a Class D felony on the second or subsequent conviction pursuant to RSMo. Section 577.010, or on a fourth or subsequent conviction for any other offense

No court in Missouri shall suspend the imposition of sentence as to such a person nor sentence such a person to pay a fine in lieu of a term of imprisonment, nor shall such person be eligible for parole or probation until he has served a minimum of forty eight consecutive hours of imprisonment, unless as a condition of such parole or probation, such person performs at least ten days involving at least forty hours of community service under the supervision of the court in those jurisdictions which have a recognized program for community service.

FELONY OPERATION OF A MOTOR VEHICLE WITHOUT A PROPER LICENSE- RSMo. SECTION 302.020

It shall be unlawful for any person, except those expressly exempted by RSMo. Section 302.080, to operate any vehicle upon any highway in this state unless the person has a valid license. RSMo. Section 302.020(1). Any person convicted of a third or subsequent time of violating RSMo. 302.020(3) is guilty of a Class D felony. State v. Louis, #ED80357 (Mo. App. 4/8/03)

It is important to note that convictions are required to enhance sentencing in this context. Suspended impositions of sentence do not count.