Posted by Gary J. Lauber on July 21, 2014SHARE IT
“Should a driver initially refuse to submit to chemical testing, the arresting officer has the choice of either permitting the driver to withdraw his refusal and submit to chemical testing or of letting the driver’s initial refusal stand as grounds to administratively revoke the driver’s license” Rothwell v Director of Revenue, 419 SW 3d 200 (2013).
Today our DWI lawyers won a case for our client that was facing a 1 year license revocation for allegedly refusing to submit to a breath test after being arrested for DWI. Under Missouri law a driver who refuses to submit to a breath or chemical test may be subject to a 1 year revocation for that refusal. However, the police officer must follow proper procedure or the refusal can be thrown out of court and prevent the 1 year revocation.
In today’s case, the driver agreed to do a breath test, however, she was presumed to have refused the breath test because she did not provide an adequate breath sample. The accusation is that she was just acting like she was blowing into the machine when she really was not. If proven, that is the same as simply refusing to take the test int he first place. After the attempts with the breath machine, the driver then agreed to submit a urine sample and she did. However, because of the claimed refusal to properly submit to the breath machine test, the officer notified the Missouri Department of Revenue (“DOR”) and they issued a 1 year license revocation.
In order to protect our client’s license, we immediately filed a case in St Charles County, Missouri (where the arrest occurred) against the DOR asking a Judge to issue an Order preventing the DOR from suspending or revoking her license. The Judge ruled in our favor preventing the license revocation and ordering the DOR too clear up our client’s driving record.
Missouri laws states that if a driver refuses to take a test their license is suspended, however, if the officer then gives the driver another opportunity or a different alcohol test (blood or urine) is agreed to, then the 1 year suspension or revocation is thrown out.
“the statute’s [RSMo 577.041] purpose of encouraging consent to chemical testing so the police are able to collect admissible evidence of intoxication. That purpose is served whether a driver consents to chemical testing initially, or following initial refusal. However, should a driver initially refuse to submit to chemical testing, the arresting officer has the choice of either permitting the driver to withdraw his refusal and submit to chemical testing or of letting the driver’s initial refusal stand as grounds to administratively revoke the driver’s license”
Most DWI cases have 2 parts, the criminal DWI charges and the administrative license suspension or revocation. While both are from the same arrest, each case is handled differently and separately from each other; both cases are important
Contact a DWI lawyer today for a free consultation. 314 863-0500.