Missouri DWI &
Administrative Driver's License Suspension

As discussed previously, there are two separate proceedings initiated when a person is cited for DWI. At the same time that a person is being prosecuted criminally, a civil administrative suit is brought by the Department of Revenue against his or her driver's license. Neither case has any bearing on the other.

After a person has been read the implied consent notice, been tested, or refused the test, the police officer will keep his or her plastic driver's license. He must serve the person with a yellow form entitled "Notice of Suspension/Revocation of Your Driving Privileges" that has been properly filled out by the officer. This form will serve as the person's driver's license during the pendency of the administrative suit.

This slip of paper, if you read the fine print, will tell you that the driver/arrestee must send a request for a hearing concerning the driver's license in to the Department of Revenue in Jefferson City within 15 days of the arrest. The form for requesting the hearing is at the bottom of the "Notice of Suspension/Revocation". If the officer did not keep the driver's license for some reason, that license must be submitted to the Department of Revenue within 15 days, as well. If the driver fails to send this piece of paper in within the time limit, his license will be automatically suspended by the Department of Revenue. If the driver or his attorney does request a hearing, the driver will be given what is called an Administrative Hearing.

American Due Process provides that before the government can take away your property, you must be given an administrative hearing to determine whether that taking is lawful. When the Department of Revenue receives this request, they will send notice to the driver and/or his attorney that they have received it. The driver's privileges remain valid pending the hearing. About three to six weeks after the request is mailed in, the driver and/or his attorney will receive notice of the hearing date and time. The hearing date is chosen by the Department and usually cannot be changed, moved or continued. The hearing may be conducted in person or by telephone conference.

IF YOU TOOK THE TEST: At the administrative hearing of a driver who took and failed a test, the state has the burden to prove (1) that the officer had probable cause to believe that the person was operating a vehicle while under the influence of alcohol and/or drugs; and (2) that the subject tested at .08 or more. Those are the only issues at the hearing and if they prove it, you lose your license. The state will often rely on a form called an "Alcohol Influence Report" (AIR) filed by the officer. The driver may put on any evidence that may be relevant at the hearing. If the hearing officer finds against the driver, he or she issues a "Sustain Order" and suspension/revocation commences 15 days from the date the order is mailed.

SPECIAL NOTICE FOR MINORS: Missouri has a "zero tolerance" law pertaining to minors. It is illegal for a person under the age of 21 to operate a vehicle with a blood alcohol of .02 or more. If you are under the age of 21 and you submit to a breath, blood or urine test and your alcohol concentration is determined to be .02 or greater, and you have no prior alcohol related law enforcement contacts, your driving privileges may be suspended for 30 days followed by 60 days of restricted driving. If the person has a prior alcohol related contact within 5 years, privileges will be suspended for one year. You must also complete the SATOP program. The good news is that the suspension will be expunged after 2 years or when the person turns 21, whichever comes first. If you refuse a test, the potential penalties are the same as for those over 21.

Persons under the age of 21 are also exposed to the "Abuse and Lose" provisions of the law which can effect their driving privileges. A court will enter a suspension/revocation for any minor who commits and alcohol related traffic offense, an offense of possession of alcohol while operating a car, possession of drugs, using or creating a fake I.D., or a second possession of alcohol by a person under age 18. The first time gets you a 90 day suspension. 2nd time is a 1 year revocation.

OTHER ISSUES OR DEFENSES: Administrative hearings in Missouri are tough to win because the issues are limited. The arresting officer doesn't even have to present for the hearing! Yet, there are defenses that ought to be pursued. Whether a person was even driving may be a defense. Whether a person drank alcohol after driving may be a good defense. There are certain statutory or constitutional arguments and defenses. There are also medical defenses (diabetics may often appear intoxicated during a period of insulin deficiency; asthmatics may have a hard time blowing into breath testing machine).

Another defense that works in certain cases is to hire an expert to do what is called a "retrograde extrapolation". Under this method, the expert will take the amount of alcohol consumed by an individual, and the time of such consumption, and determine what the person's blood alcohol level would have been at the time of driving as opposed to an hour or so later when he or she was tested. Sometimes, the expert can determine that the driver was actually under the legal limit at the time of driving and his or her driving privileges can be saved. The list of defenses is only limited to the work and creativity that you and your attorney put into developing a defense for the administrative hearing.

SUSPENSION PENALTIES: If a Sustain Order is issued after the administrative hearing:

IF YOU REFUSED THE TEST: Driving privileges are revoked for one (1) year. However, if it is your first, you can apply for a hardship license after 90 days. This goes on the person's driving record and stays for five years.

NOTE: The administrative hearing and the criminal case are two separate suits. Neither one has any bearing whatsoever on the other. However, if you are suspended pursuant to one, that suspension will be run concurrent with a suspension in the other. So, if you lost at the administrative hearing and at trial, and it was your second time DUI, you would only be suspended for one year total. But, your driving record will reflect two separate suspensions for the same arrest.

APPEALING THE SUSPENSION: Every driver has the right to appeal the administrative driver's license suspension to the circuit court of the county in which the arrest was made. A Petition for Review of a license revocation must be filed within 15 days of the date that the suspension was mailed by the Director. If an appeal is taken, the matter is heard anew by a judge in the courtroom and the administrative hearing is treated as though it never happened. These appeals are usually handled by the Department of Revenue.

HARDSHIP LICENSE: If you have been revoked from driving in Missouri for convictions or a refusal, you may be eligible for "Limited Driving Privileges", most commonly known as a hardship license. You may apply for a hardship license to either the circuit court of your county of residence or the Director of Revenue. There are many reasons why a hardship license may not be granted, including the fact that you have been convicted of a felony involving the use of a vehicle, the failure to pay child support, or suspension in another state. There are also many requirements concerning when a person may apply for the hardship license. For instance, a person convicted of 2 DWI's within 5 years may not apply for a hardship license until he or she has served at least 2 of the 5 years of revocation. You should consult with an attorney concerning whether you are eligible for a hardship license.

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