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What Happens in a Petition for Review of a Breathalyzer Refusal Revocation?

Nov. 24, 2020

If you've recently been arrested for a DWI, then you were asked to provide a breath sample by blowing into a Breathalyzer. You may or may not have refused to do so. If you refused to blow, then you could lose your license for up to a year.

After an arrest for DWI, an officer will ask you for a breath sample. If you refuse to "blow", then your license will be revoked for a period of one year. However, your rights don't end there. You will have 30 days to file what's called a Petition for Review, or PFR. A PFR is a lawsuit filed by you against the Director of Revenue challenging the DOR's basis for revoking your license.

Under RSMo. 577.020, otherwise known as the Missouri Implied Consent Law, you are deemed to have given your consent to a Breathalyzer test. Additionally, your consent covers chemical tests of your breath, blood, urine or saliva. This consent covers up to two tests.

An experienced Missouri DWI Attorney will help you properly draft a PFR and make sure that it is timely filed. After the Court has processed the filing of the PFR, you will then need to serve the local prosecutor's office and the DOR with copies of your petition. Again, your attorney can make sure that this is accomplished.


At the hearing, the parties must present evidence to persuade the court to rule in their favor with respect to each of the issues. The evidence proffered by either side will be either in the form of documentation, reports, etc., or by way of live testimony.

At the hearing on your Petition for Review, the DOR and your attorney will be able to present evidence. Whether the DOR or your attorney goes first really depends on the jurisdiction you are in, though as the Petitioner the right to present evidence first is yours.

The DOR often will submit its case on the record and rely solely on the police officer's report to satisfy its burden of proof. Without any further evidence offered by either side, the Court will likely rule in favor of the DOR and uphold the revocation of your driving privileges.


In a PFR there are only three issues the parties are litigating. During the hearing, the DOR must present evidence with respect to: 1) whether the Petitioner was under arrest; 2) whether the arresting officer had reasonable grounds to arrest the Petitioner for DWI; and, 3) whether the Petitioner refused to submit to a breathalyzer or other chemical test.

Should the DOR make a prima facia case, then the Petitioner will need to present rebuttal evidence. A "prima facia" case simply means that the DOR has put forward enough evidence to meet its burden. If the Petitioner does not present any evidence to rebut the DOR's case, then the DOR will win.


The first issue the parties must prove is whether or not the Petitioner was arrested. Specifically, the issue is whether the Petitioner was arrested when the Officer read the Missouri Implied Consent warning to the Petitioner. This is a technicality but it is one which only a trained and experienced DWI attorney will find.


The second issue revolves around whether the arresting Officer had Reasonable Grounds to believe that the Petitioner was driving a motor vehicle while in an intoxicated or drugged condition. That begs the question as to what exactly does "reasonable grounds" mean?

'Reasonable grounds' is virtually synonymous with probable cause." Hannah v. Director of Revenue, 77 SW 3d 616 (Mo. banc 2002)

Probable Cause is enough information for the officer to develop a belief that the defendant was driving while intoxicated. As the Missouri Supreme Court explains,

"Probable cause...simply means a knowledge of facts and circumstances sufficient for a prudent person to believe the suspect is committing or has committed [an] offense." State v. Carrawell, 481 SW 3d 833 (Mo. banc 2016) (citing State v. Heitman, 589 S.W.2d 249, 253 (Mo. banc 1979)).

The DOR does not need to prove that the Petitioner was actually driving the car, only that the arresting officer had reasonable grounds for believing that the Petitioner was operating the car while in an intoxicated or drugged condition.


Finally, the DOR will need to present evidence proving that the Petitioner refused to provide either a breath, blood, saliva or urine sample upon request by the arresting officer.

Whether or not a person refuses a request to provide a chemical sample for determining their BAC depends on whether the arresting officer provided the driver with sufficient warning as to the ramifications for a refusal. In addition to this, the officer must also provide his or her reasons for requesting the test. Pursuant to RSMo. Section 577.041.1,

[t]he request of the officer shall include the reasons of the officer for requesting the person to submit to a test and also shall inform the person that evidence of refusal to take the test may be used against such person and that the person's license shall be immediately revoked upon refusal to take the test. Allison v. Director of Revenue, 525 SW 3d 127 (Mo. Court of Appeals, Western Dist. 2017)


After the police report has been submitted into evidence, your attorney can call the arresting officer to the stand and conduct a direct examination of the officer (or cross-examine the officer should the DOR choose to put the officer on the stand first). Though your attorney can ask the officer questions about any of the issues, the main focus will likely be on the basis of the officer's decision to make an arrest.

The officer's decision to arrest someone for Driving While Intoxicated will be based on his observations. His observations can be broken down into Pre-Stop and Post-Stop periods. Pre-Stop, the officer is observing the Driver's ability to stay within the lanes and follow the ordinary rules of the road, like using their blinkers, driving too fast or too slowly, etc. This is the Driving or Vehicle in Motion Phase of a DWI arrest.

Post-Stop is when the car has already pulled over and involves the actions of the driver from this point on. This includes the driver's ability to speak without slurring, stand and walk without losing balance, whether he or his clothes smell of alcohol, etc. The officer will usually round out his pre-arrest observations with Field Sobriety Tests. These actions are split into two phases: the Personal Contact Phase and the Pre-Arrest Screening Phase.


The Director of Revenue's case relies primarily on the arresting officer's observations of the Petitioner. Often, especially in refusal cases, the police report will consist only of observations. Depending on how well or poorly the report is prepared, the officer may be called to the stand by the DOR in order to fill any gaps in the record.


The officer's first impressions of the Petitioner will usually be when observing the car in movement. The officer will testify as to what he saw the car doing while being operated on the road. If it crosses the center line, or changes lanes without signaling, for example, then the probable cause for the stop exists. While this is only probable cause for issuing a ticket for a lane violation or speeding, it can also be used in the officer's ultimate calculation of whether or not an arrest for Driving While Intoxicated is warranted.


After the officer has pulled the car over, he will begin his observations of the driver by making note of any movement within the car (looking for signs of the driver hiding items or grabbing for a weapon). Next the officer will observe the driver's ability to answer basic questions, make note of the driver's pattern of speech--is it unusually slow or slurred?

While talking with the driver the officer will usually ask for the driver's ID and proof of insurance in what is known as a divided attention task. Intoxicated people have more difficulty completing divided attention tasks than those who are sober. Finally, the officer will also be making note of any aromas of alcohol or signs of recent alcohol consumption in the car, such as empty or open beer cans.


An officer's observations also includes how he scores a driver's performance on the Standardized Field Sobriety Tests. This is a 3-part battery of divided attention tests which must be performed in a specified manner. The National Highway Traffic Safety Administration, or NHTSA, provides officers with tools to help identify drivers who may be impaired. These tools include training on the Horizontal Gaze Nystagmus (HGN) test, the One-Leg Stand test, and the Walk-and-Turn test.

This battery of tests was scientifically validified by research sponsored by NHTSA. One effect of these scientific findings is that in order for results of any tests to be given that validity in court, the Prosecutor must show that the officer followed the NHTSA guidelines in administering and grading each test. Any deviation from the proper procedure can result in either the suppression of the results or in their being given less weight by a jury or judge.


The Horizontal Gaze Nystagmus test is usually the first test an officer will conduct on a driver. You may recognize it as the test where an officer is checking the driver's eyes. That's partially correct. In fact, the officer is looking for clues of alcohol consumption which cannot be controlled by the driver. The physical cue which the eyes give away is called nystagmus. It is a slight visible vibration of your eye.


The One-Leg Stand test involves the driver standing on one leg with the other foot lifted approximately 6-inches from the ground. While holding this position, the driver must count to thirty. The officer is looking for how well the driver can maintain his balance. Does he sway? Does he have to put his foot down? Does he have to use his arms? How slow or fast is he counting, and is it accurate?


The Walk-and-Turn test involves the driver walking 9 steps forward in a heel-to-toe fashion along a straight line. At the end of the line, the driver is then required to make an unnatural turn using multiple, small steps. Then, the driver must walk back to his starting point using the same heel-to-toe fashion. The officer is looking for any stumbling, swaying, gaps in heel-to-toe, and the driver's ability to follow clear directions.

During the PFR, your attorney will aggressively examine the officer with respect to each of these tests. How did the officer provide the instructions? Did the officer make note of any clues of impairment? If so, how did make those notes, where, when? Did the officer conduct the HGN test properly or did he move through the stages too quickly? Has he even been trained to conduct and grade these tests? Is his training up to date?


The ultimate goal is to have the results of the Field Sobriety Tests thrown out and minimize the officer's other observations. If the officer did not conduct the tests properly, or scored them in an unauthorized manner, then he will not be able to rely on the results as a reasonable basis for his arrest. This means that the officer's earlier observations will have to be sufficient for his decision to arrest the driver for Driving While Intoxicated, otherwise the DOR will not be able to prove that there was Reasonable Grounds to believe that the Petitioner was driving a motor vehicle while in an intoxicated or drugged condition.

Occasionally, an attorney will be able to show the DOR's failure to meet one of the other two issues: Was the driver under arrest before he was read the Missouri Implied Consent law? Did the driver actually refuse to provide a breath sample? Only a careful analysis of the Police Report and the Alcohol Influence Report will determine whether your attorney can be successful on these issues. This is why it is important that you hire an experienced Missouri DWI lawyer who knows what it takes to win a PFR.

Anthony Bretz knows what it takes because he has won PFRs for many of his clients over the past decade. He has won on all three issues by carefully reviewing the police report and aggressively examining the arresting officer. You do not have to let your driver's license get revoked. Contact Anthony Bretz today and hire a DWI attorney who knows how to win.