SHOULD YOU BLOW

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SHOULD YOU BLOW

There is no easy answer to this question, and what is best for you depends largely upon your personal history and how important your driving privileges are to you. This is because a DWI charge does not only involve a criminal case against you, but an administrative case as well, and what is good for one case isn’t always necessarily what’s good for the other.


ADMINISTRATIVE HEARING IN MISSOURI REGARDING YOUR PRIVILEGE TO DRIVE AN AUTOMOBILE
-ADMINISTRATIVE CASE IN MISSOURI-

How Important is Your License to You?

Let's start by explaining the way the administrative case works in Missouri. There's a law in Missouri that says that just by having a driver's license, you are giving your implied consent to allow any police officer to test your blood alcohol level if they feel you may be driving while impaired. Now, the state respects your personal rights, guaranteed both by the Constitution of this State and by the Constitution of this Country. And one of those rights includes the right to refuse to submit to this sort of test being forced upon you based solely on what may be barely more than a mere hunch on the part of a police officer. So, you can refuse if you want to and they won't take away your right to do so. BUT, what they will take away, if you choose to exercise that right, is one of the privileges they have granted you: the privilege to drive on their roads and highways for at least one year.

Now, if you're like most people in the Midwest, driving doesn't feel so much like a privilege as it does a necessity! Most of us don't have access to public transportation and don't live within walking distance of our jobs, so not being able to drive for a year or more is a BIG DEAL. The blow is softened a little bit by the fact that most people, after 90 days, can get limited driving privileges allowing them to drive to and from work or school, but even still, 90 days is a LONG TIME, right?

SO WHAT REALLY HAPPENS IF YOU LOSE YOUR ADMINISTRATIVE HEARING OR FAIL TO ASK FOR ONE?

So, what happens if you do blow? As long as this is your first DWI, blowing over a .08% is going to result in a 90 day suspension. That's not as bad as a year, and even better, if you file an SR-22 before the first 30 days is up, they'll give you limited driving privileges for the remaining 60. That's a lot less harsh than what happens if you don't blow.

Either way, whether you don't blow and your license is revoked for one year, or you do blow over .08% and your license is suspended for 90 days, you're going to have to jump through some hoops. You're going to have to file an SR-22 ($$$), complete SATOP ($$$), and possibly meet some other conditions such as a reinstatement fee ($$$) and an ignition interlock device ($$$). And again, all of this is for first-time DWIs. If you've had one before, everything gets harsher (sometimes even resulting in a 10 year denial of your driving privileges)

Maybe you're thinking, "what are the chances I'd get caught if I drive while I'm revoked or suspended?" And if you are thinking that, seriously, you should stop. Driving While Suspended or Revoked charges are VERY serious. They cost a lot in attorney fees and if you DON'T get an attorney to help you with them, they result in longer suspensions (at least another year), fines, and eventually can even lead to mandatory jail time.

SO WHY WOULD I EVER NOT BLOW?

1)   In some counties in very particular circumstances, the prosecutor will "confess" your petition for review. Make sense? I didn't think so. Let me explain. When you refuse to blow, you have 30 days to file a petition for review with the Circuit Court in the county where the arrest occurred. This 30 days is STRICT, and no amount of whining, crying, begging, or lawyering is likely to get around it, so you have to get that filed (with the help of an attorney) right away.

If you do get it filed in time, and your stop happened to occur in a county where the prosecutors are ok with doing this, AND you've never, ever, ever had any sort of alcohol or drug arrest before, the prosecutor can choose to "confess" the petition in return for certain conditions. Usually, these conditions include things like a guilty plea on your criminal charge (SIS's are ok-see below), community service, SATOP, and possibly a few other things, but the outcome is NO LICENSE LOSS. At all. That's pretty great, right? Well, the answer to that is a big, resounding YES maybe. Requiring a guilty plea can be pretty harsh, especially if you have a good case for the criminal side.

2)   You could win your petition for review! Yay, Yay!! This is the way to go, right? You'll just hire the best attorney money can buy and she/he will CRUSH the police officer on the stand. It will be great and you'll never lose your license at all! OR, MAYBE NOT. Even the very best attorneys will tell you that the Petitions for Review are very, very difficult to win.

Why are they so hard? Well, remember that "implied consent" thing I was telling you about earlier? That's why. In these cases, the officers don't have to prove that you were drunk. All they have to prove is that you violated the implied consent law. They have to show:

* that you were arrested,

* that the officer had reasonable grounds to believe that you were operating a motor vehicle (not driving, just operating! As in, the keys were in it and you were behind the wheel) while in an intoxicated condition,

* that you refused to submit to blood alcohol testing

That's it! There's no proof beyond a reasonable doubt requirement, and the hearing isn't in front of a jury of your peers. It's in front of a judge who hears tons of these all day every day and has heard every excuse and story in the book. I'm not saying that it's right, but that's what you're up against. People do win sometimes, but it's a big, big risk. Especially if you're fond of driving.

3)   Choosing to blow could have a negative impact on the criminal charge against you. First, I should note that choosing not to blow can have a sort of negative impact too. In the state of Missouri, the state can use your refusal as proof against you in a criminal trial. But more importantly, there are other reasons why choosing not to blow may be the best way to go for you. To explain better, we have to move on to your criminal case.

CRIMINAL CASE IN MISSOURI REGARDING INNOCENCE, JAIL, or PROBATION
How big of trouble will you be in?

In my very best dreams as a DWI defense attorney, the perfect client would be one who has never had a DWI before, got stopped in a check point (ie-the officer didn't observe any traffic violations), VERY politely but adamantly refused any tests or questions, and a video of the stop shows no swaying, stumbling, grumbling, falling, cursing, etc. Of course, this NEVER happens. Everyone says or does something that is in some way incriminating. But even still, there are usually little gaps in the officer's story that can help us wiggle our way into a better outcome for you, especially if they don't have some awful breathalyzer result to use against you.

That being said, it's pretty typical that the worst possible outcome in a first-time DWI where there were no injuries is generally going to be an SIS probation (usually for 2 years), with community service, SATOP, VIP, some fines, and maybe a few other costly and minimally restrictive requirements. But what does all that mean?

Well, an SIS probation means "Suspended Imposition of Sentence," and requires that you plead guilty to the original offense (in this case, a DWI). Then, during the probation you are under some level of supervision by the court (in some cases you may have to check in with a probation officer, in others it's less restrictive). As long as you complete the term of the probation without violating any of its conditions, your DWI will become a "closed record."

This means that the general public won't ever be able to see that you had a DWI conviction once your probation is over, and for most people, this is a pretty fair outcome. But, some people will always be able to see it. For example, police officers and the Criminal Justice System will always know that you had that DWI arrest and that you served probation on it. Also, certain types of employers that require a higher level of security clearance will be able to see it, so if you're applying for certain government jobs, health care positions, or jobs in education, your SIS can come back to haunt you.

If you're a person who might be worried about this type of thing, it may be more worth it to you to take the hit on your driving privileges than it would to have that kind of evidence hanging over your head in the criminal matter. But you should remember, that your driving record will also reflect your refusal, so you must weigh your options carefully.

You may notice that I highlighted the words "first-time" and "no injuries" up above. That's because the normal rules don't apply if you've had a DWI before, or if your DWI resulted in someone being seriously injured. You've probably guessed that everything is a lot harsher in those cases, and you'd be right.

If you've had DWIs in the past, the Prosecutor in your criminal charge will use those to increase the seriousness of the crime. They may call you a "prior offender" or a "persistent offender" or worse, and charge you with a higher level misdemeanor or even a felony. If that happens you're looking at something a lot worse than an SIS probation. If that's the case, it may be more worth it to you to lose your license for a long time than it would be to give them ammo in the serious criminal charges against you. If your DWI caused serious injuries, you're likely looking at serious charges as well as civil liability (ie-BIG MONEY LAWSUITS), in that case, refusing to blow might be the best option as well.

If your DWI caused serious injuries, you're likely looking at serious charges as well as civil liability (ie-BIG MONEY LAWSUITS), in that case, refusing to blow might be the best option as well.




So, Really, Should I Blow or Not?

In case you read all of that and you're still really confused, or you chose not to read all of that and just skipped to the end, the answer to this question is, there is no one right answer. What you should do depends entirely upon your personal history, your personal preferences, and the particular events of your stop. The best thing to do is UTILIZE THE RIGHT TO CONTACT AN ATTORNEY. If you ask to speak with an attorney before you blow or refuse to blow the officers have to allow you 20 minutes to contact one. That way, you can get some legal advice personalized to you.

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