HARRIS LAW, LLC

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HARRIS LAW, LLC © 2013 | PRIVACY POLICY

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

Will I lose my license? (Administrative effects of DWI)

The short answer is yes. However, your attorney can discuss with you options to prevent a loss of license (The driver has 15 days from the date their Notice of Suspension/Revocation is issued to request an administrative hearing. If requested, a hearing is scheduled by the Department of Revenue in the county of arrest or may be held by telephone or in person). As you are ticketed for DWI, points are added to your driving record as follows:

1.First conviction for driving while intoxicated (DWI) - 8 points

2.Second or subsequent conviction for DWI - 12 points

A first-time DWI conviction results in a 30-day suspension. After the 30-day suspension, the driver may receive a 60-day restricted driving privilege. This is sometimes referred to as a hard 30 and soft 60. The driver is eligible for reinstatement of his license after the full 90 day period is complete and all reinstatement requirements are met. (see below)

A driver convicted of a second alcohol offense, regardless of the length of time between convictions, is revoked for a period of one year. A driver convicted of driving while intoxicated for the second time in a five-year period also receives a five-year license denial.

A 10-year license denial is imposed against any individual convicted three or more times for driving while intoxicated. After ten years, the privilege to drive can be restored only by court order.

A person whose driving privilege is suspended or revoked may have his or her driving privilege reinstated after the suspension or revocation period is served if all requirements are filed with the Department of Revenue. If a driver does not satisfy the reinstatement requirements, the driving privilege remains suspended or revoked.

Reinstatement Requirements:

Anyone suspended or revoked for points assessed as a result of an alcohol-related conviction must meet the following reinstatement requirements:

1.Pay a $45 reinstatement fee.

2.File and maintain proof of financial responsibility for two years from the suspension or revocation date.

3.Provide proof of successful completion of a Substance Abuse Traffic Offender Program (SATOP) or comparable program. The Division of Alcohol and Drug Abuse will send this form directly to the department after the program has been completed. Any questions regarding SATOP comparable programs should be directed to a certified SATOP Offender Management Unit.

Any driver revoked for at least one year is also required to take and pass the complete driver examination and apply for a new license at proper fee.

Will I go to jail? (Criminal penalties of DWI)

Almost always a person ticketed of DWI is taken to the police station and held for a period of time. However, this section deals more with the incarceration as a result of a DWI conviction.

First time offenders of DWI could see up to 6 months in jail. However, outside aggravating circumstances, (accident, injury, being rude to the officer, child in car, etc…) a first time offender will be able to avoid any substantial jail time by being placed on probation. Consult with your attorney the possibility of avoiding jail time in lieu of community service or other alternative sentencing options.

A second time offender could see up to 1 year in jail. While probation is a real possibility for second time offenders the likelihood of avoiding jail drastically decreases. Many prosecutors and judges will at least request shock time (a short period of time spent in the county jail for the purposes of shocking the offender into a law abiding citizen).

A third time offender will be classified as a felon and will likely result in some type of jail time in the department of corrections (DOC). A third offense could see up to five years in DOC while a chronic offender could see an increase to a class B felony and a maximum sentence of 15 years in DOC.

What do I do if I am arrested? (The jailhouse rock)

Once arrested, the police officer will take you to the station for further investigation. You will be given the opportunity to submit to a Blood Alcohol Content (BAC) test pursuant to Missouri's Implied Consent Law. As discussed above, by refusing to take the test, your license will be revoked for a year. However, taking the test will give the officer crucial evidence in proving you are impaired.

Before you take the test you have the right to contact an attorney. You must request and the officer will give you a reasonable amount of time to call an attorney. Being that most DWI arrests occur at night, it may be difficult to contact an attorney. However, if you have an attorney that you commonly work with it may be an opportunity to but your attorney on notice of your arrest so they can spring to action.

Additionally, the officer must observe you for twenty (20) minutes before retrieving a breath sample. During this time you will not be allowed to chew gum, smoke a cigarette, belch or vomit. If any of these things occur during this time the officer should re-start the twenty (20) minute observation period. Try to pay attention to the time observation begins and ends and make sure to make mental notes if you vomit or belch.

Finally, the officer will attempt to go through an interview process. Remember, you have a right to remain silent. Politely tell the officer that you wish to exercise this right and answer no questions.

How much will this cost me? (Financial hardships of DWI)

The financial effects of a DWI can sometimes be strenuous. When looking into costs you should consider the costs of insurance (see below), SATOP, Court fines, Court costs, licensing fees, and attorney fees. While there is no set fee there are some guidelines governing the fines than may be assessed.

Fines and Court costs

For a first time offender the fines could be up to $500.00 plus Court costs and other Court related administrative fees. A second time offender could be fined up to $1000.00 plus Courts costs and may also have to bear the costs of an ignition interlock device on their vehicle which is $50.00-100.00 to install and $50.00-$75.00 per month to maintain. A third time or subsequent offender could see up to a $5000.00 fine plus the previously mentioned interlock device and Court costs. Court costs generally range from $10.00 to $100.00.

SATOP costs

SATOP is the Substance Abuse Traffic Offender Program (see below). Completion of this course is required in order to reinstate your license. It is a two step process that involves the expense of an assessment and treatment. The assessment costs $271.00 and is set by the state. The treatment costs will vary based on where your assessment places you, but it will range from $100.00 to $1005.91, unless it is determined that in-patient treatment is required which could cost more. While financial assistance is available for some programs you will at least have to pay $150.00 to proceed.

Licensing fees

In order to get your license back the state requires you pay the department of revenue a $45.00 reinstatement fee.

The question here is not whether you can afford an attorney, but whether you can afford to not have an attorney. Many times attorneys can minimize fines and provide tips for keeping insurance rates from skyrocketing. More importantly, they are your best chance of staying out of jail. While rates vary from attorney to attorney you can expect to pay at least $500.00 in the best case scenario and many thousands of dollars as things get worse.

Will this stay on my record? (The long term presence of DWI)

There are multiple outcomes in dealing with a DWI. For a regular conviction or a suspended Execution of Sentencing (SES) a DWI conviction will remain on your record for a minimum of ten (10) years. After ten years you may apply for expungement if you meet the requirements we discuss below. If you are one of the lucky ones to be granted a Suspended Imposition of Sentencing (SIS) then your charge of DWI will not show up on casenet. A final possible outcome is a deferred prosecution. These are rarely given by prosecutors but if obtained can be a great way to keep a DWI of your record.

Expungement

Even if you are hit with a DWI on your record there are still ways to remove it. After 10 years, upon application by an individual, a court must enter an order of expungement if it determines:

that the person with a first alcohol-related driving offense has not been convicted of any subsequent alcohol-related driving offense, has no other subsequent alcohol-related enforcement contact,  and has no other alcohol-related driving charge or enforcement action pending at the time of the hearing on the application.  

This provision will not apply to a person who has been convicted of driving a commercial motor vehicle while under the influence of alcohol (RSMo Section 577.054).

Will my insurance go up? (I have to be covered)

A DWI conviction in the state of Missouri may cause your rates to go up or in some cases the insurance company may even cancel your policy. If your insurance company raises your premiums but keeps you as an insured, you will likely be labeled a “high-risk driver.”

Missouri requires that individuals ticketed for DWI by covered with SR-22 insurance before your license is suspended. This insurance must remain for a period of two years. If for some reason your insurance company does not find out about your DWI then your request for SR-22 insurance will definitely tip them off. Additionally, not all insurance companies offer SR-22 policies. So your policy may be non-renewed or cancelled simply because the company can no longer provide insurance for you. For all of these reasons you should consider obtaining SR-22 insurance from a third party insurance company.

If for whatever reason, it slips through the cracks of red tape and your insurance company doesn’t find out about your DWI then consider yourself lucky and do not cancel your insurance. Although you only need be covered by SR-22 it may save you thousands in future rate increases by keeping both policies.

Can I get treatment for my drug or alcohol problem? (The path to rehabilitation)

There are many resources available to those who want to get help. Additionally, Missouri law now requires all persons arrested for DWI to complete an assessment screening of their alcohol and substance use related to their driving behavior. This screening consists of a Department of Revenue driver's record check, completion of the Missouri Driver Risk Inventory II (DRI-II), and an individualized interview. The results of the screening determine the appropriate level of SATOP placement for each client. Once examined, SATOP officials assign the appropriate service(s) for the individual, which are listed below:

1.Offender Education Program (OEP): A 10-hour education course designed specifically to assist lower risk, first-time offenders in understanding the choices they made that led to their intoxication and arrest. Education is key to helping first-time offenders take responsibility for their actions.

2.Adolescent Diversion Education Program (ADEP): An education program for minors who may have received Abuse/Lose, Minor in Possession, or Zero Tolerance offenses.

3.Weekend Intervention Program (WIP): A level of service designed for repeat offenders or "high risk", first-time offenders using intensive education and counseling intervention methods over a marathon weekend of structured activities. The program is conducted in a restrictive environment.

4.Clinical Intervention Program (CIP): A 50-hour outpatient counseling program consisting of individual counseling, group counseling, and group education. Ten hours must address DWI/DUI issues.

5.Youth Clinical Intervention (YCIP): A program for minors who have been identified through the screening process as having serious problems with substance abuse.

6.Traditional Treatment: Individuals presenting for SATOP services having multiple alcohol or drug related traffic offenses, or those identified through the screening process as being at a “high risk” for chemical dependency, may receive a recommendation for traditional substance abuse treatment. This treatment may be in the form of a residential or outpatient program but must be completed at a state certified, or nationally accredited, substance abuse treatment program.

Should I take sobriety tests? (Field Sobriety Tests (FST) goals and tips)

The short answer is, NO. There is no requirement that you perform field sobriety tests (FST). These tests include the Horizontal Gaze Nystagmus Test (eye test), Walk & Turn Test and One Leg Stand Test, asking you to recite the alphabet without singing, count a specific series of numbers, touch fingertips or other tests. Law enforcement officers routinely inform you of Missouri’s Implied Consent law upon your refusal to submit to FST’s or a portable breath test (PBT). However, Missouri’s Implied Consent law only refers to a valid sample of your breath, blood, or urine obtained by a properly certified officer. As a result, you will not be penalized directly for refusing to perform FST’s or PBT’s.

Remember, it is a police officer’s job to investigate and determine if the law has been broken. As a result, everything you do or say from the moment the officer sees your vehicle may be used to prove you are impaired. Remember, you can always exercise your right against self-incrimination. And you will almost never talk yourself out of a DWI ticket.

Do I take the breathalyzer test? (The datamaster dilemma)

This is one of the most asked questions of DWI attorneys. However, there is no good answer. In some cases you should in others it may be more beneficial to decline. It is important to consult an attorney on the issue because the law is constantly changing. In any case it is important to understand Missouri's implied consent law. This law requires a driver to submit to a chemical test when requested by a law enforcement officer. If the driver refuses to submit to the test, their license is revoked for one year.

The initial notice of the refusal will likely be served by the arresting officer by taking possession of any valid Missouri driver license the driver has in his or her possession and issue a 15-day permit, if applicable. Any continued driving beyond the initial 15-day period must be pursuant to a court issued stay order which may be obtained by an attorney. The stay order will temporarily suspend the revocation until the case is settled.

If the court upholds the arrest, the driver serves any remaining time for the original revocation period and must meet the reinstatement requirements. If the court overturns the arrest, the revocation is canceled and the license is returned, if applicable.

As to the ultimate question consider this. The state of Missouri finds it illegal to drive a vehicle while in an impaired condition. It further finds that a blood alcohol level of .08 or above is considered impaired. While losing your license for a year is tough punishment for refusing a breathalyzer, a test result of .08 or above is a guaranteed conviction of DWI.

Should I talk to the officer? (Your right to remain silent)

In general you should not talk to the officer. However, you should definitely be polite and respectful to the officer. This will not only pay off in the future, but is simply the right thing to do. The officer is there doing a job, and being rude can only make things worse. The officer will likely ask for your license and insurance. Have these items ready to give the officer before they even get to the car. Many times an officer will confuse fumbling around and looking for your license or insurance as an indicator of intoxication.

If the officer proceeds to ask you other questions simply state, “I intend to exercise my constitutional right not to answer questions. Am I free to leave?” This statement accomplishes two things. First, it lets the officer know that you intend to remain silent and may prevent further questioning. The second thing it does is clarify whether further interrogation is considered custodial or not. An interrogation is considered custodial if the suspect is not free to leave. If the officer continues to question you after you expressly indicate your right to remain silent, simply do not answer. This right continues throughout the entire process so please remain silent.

What should I tell my attorney? (The details mean everything)

Tell your attorney everything. DWI law is littered with case law and statutes that can affect the outcome of a case drastically. No matter how insignificant the fact may seem tell your attorney immediately.

Accused of driving while drunk?

In the state of Missouri it is illegal to operate a motor vehicle while impaired. Determining what impaired means is a much more difficult questions to answer. More importantly, negotiating an outcome that will have little effects on your future, is crucial! In 2013 Joel T. Harris was named one of the Top 40 Under 40 Criminal Defense Attorneys in the State of Missouri. His knowledge and experience will help you through this extremely difficult process. Contact Harris Law immediately as these matters are time sensitive. Speaking with an attorney within 15 days of your ticket may save your license.