Challenging a DWI Breathalyzer Refusal Revocation
Sept. 3, 2020
Why You Should File a Petition for Review
If you arrested for a suspected Driving While Intoxicated after you refused a breathalyzer, then your license will be confiscated by the police. Following your arrest, you will be given an Alcohol/Drug Chemical Test Notice of Revocation (Missouri Form DOR-4323) notifying you of the revocation of your driver's license for one year, and a 15-Day Temporary Driving Permit.
You Can Continue to Drive
The 4323 also contains information regarding your right to appeal the revocation of your license. You have only 30 days in which to appeal the Director's revocation of your license. This is done by filing a Petition for Review, otherwise known as a PFR; it's a lawsuit against the Director of Revenue challenging the basis for your license revocation. In most jurisdictions in Missouri, so long as this is your first arrest for DWI, you will likely be granted a Stay Order which will prevent the Director of Revenue (DOR) from revoking your license until your PFR is ruled on by the Court.
Best practices indicate that it is advisable to file your PFR within 15 days of your arrest in order to avoid losing your ability to drive. With the granting of a Stay Order you will be able to drive for the entire time you are released after your arrest until your PFR is completed.
The Added Costs Are Minimal
Many clients worry about the costs involved with a PFR, the time it takes and the unlikelihood of success. Is it worth it they ask? In most jurisdictions you are only talking about the Filing Fees incurred with filing a petition in Associate Circuit Court, which is typically cheaper than Circuit Court. In St. Louis County Circuit Court, for example, the filing fee for a PFR in the Associate division is currently $53.50, though this is subject to increase on an annual or biennial basis. Some jurisdictions also require you to have the PFR served yourself, which is approximately $30.00 if you have the Cole County Sheriff's Office serve the PFR on the DOR in Jefferson City, Missouri.
It is true that if you hire an experienced DWI attorney to represent you in a PFR, then you will have to pay attorney's fees. But remember, you're also hiring the attorney to represent you in your criminal DWI case. Most attorneys will not charge you separately for each case, so even if you chose not to file a PFR your attorney's fees wouldn't change. The costs of a PFR are not a good reason to waive your rights.
Others wish to keep their names off of Casenet worried that their insurance company may see the case and raise their rates. Some simply wish to hide the embarrassment of a DWI arrest from their family, friends or even their employer. However, this concern is becoming less and less of an issue due to the recent addition of many municipal courts to Casenet with more to join in the near future. Simply put, this is not a good reason for waiving your right to a PFR.
You Cannot Prevail Unless You File a PFR
To be blunt, the odds are stacked against you in a PFR case. The Director will win most PFRs since the burden of proof for the Director is much lower than it will be for the State in your criminal case. While the criminal burden of proof is 'Beyond a Reasonable Doubt', in a civil case the burden is "a Preponderance of the Evidence." But what does this mean?
The amount of evidence which satisfies the requirement of "by a preponderance of the evidence" is that which is just enough to outweigh any evidence to the contrary. In other words, after all evidence is adduced at trial the evidence supports the finding that, in this case, it is more likely true than not that you were operating a motor vehicle while in an intoxicated or drugged condition.
Preponderance of the evidence is that which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows the fact to be proved to be more probable than not. (Fujita v. Jeffries, 714 SW 2d 202 - Mo: Court of Appeals, Eastern Dist., 3rd Div. 1986) (Quoting Black's Law Dictionary 5th Ed. 1979.)
Though winning a PFR is an uphill battle, if you have prior DWIs and refusals then it is worth challenging the grounds for the revocation of your license. Like in any contest, you cannot prevail if you don't try. An experienced DWI Attorney like Anthony Bretz, with multiple PFR wins under his belt, knows how to protect your rights and win PFRs.
Even if the weight of the evidence is too much for you to overcome, if this is your first PFR then depending on what jurisdiction you are in you will more likely than not be able to get a Confession of your PFR from the Director. What this means is that the DOR will not challenge your petition and essentially consent to the Court's ordering your license be fully reinstated. This is usually accomplished in tandem with your attorney negotiating a plea deal in the criminal case. Assuming your plea deal in the criminal case meets certain requirements of the Director of Revenue, then the Director will agree to a Confession of your PFR.
The actual filing fees and court costs involved with filing a Petition for Review, and the attorney's fees you are already going to spend, not challenging your refusal revocation because of costs is a non-starter. The costs are minimal and the potential benefits outweigh those or any concerns you could have. Not being able to drive in this day and age can seriously handicap your job opportunities. Why not fight to protect your rights by challenging the DOR's revocation? Anthony Bretz has been practicing DWI law for over a decade, studying the ins and outs of developments in law and technologies to better represent his clients. Contact our office today to learn more about how we can help you keep your license.