What Happens When You Blow Over the Legal Limit in St. Louis County
Feb. 9, 2022
From the moment you are pulled over in St. Louis County for suspicion of Driving While Intoxicated, the officer beings gathering as much evidence of guilt as he can.
After the officer has gathered sufficient evidence to arrest you for DWI, you will be asked to blow into the breathalyzer. The officer could have an approved mobile breathalyzer in his vehicle, or you will be asked to blow into the breathalyzer back at the police station. Either way, once you provide a breath sample the officer will have evidence of your blood alcohol content, or BAC.
If you blow at or over the legal limit (0.08% BAC), then the Prosecutor will have compelling evidence of your guilt. In most circumstances it is best to refuse to blow. If you did blow then you need to know your options. Wait too long to act and your license will likely be suspended for 90 days.
Your driving privilege is suspended or revoked based on the prior five-year driver record. If convicted or suspended during the past five years for an alcohol- or drug-related traffic offense, your driving privilege is revoked for one year. If not, a 90-day suspension is imposed.
What to do After Blowing
Upon being released from Jail, you will be handed a few documents. One or more will be your traffic tickets for DWI and any companion offenses (the reason(s) why you were pulled over initially). Additionally, you may be handed a Bond Receipt—keep this, you will need it to get your posted Bond back after your case is over.
The first thing you should do is contact an experienced St. Louis DWI Attorney like Anthony S. Bretz. A skilled attorney will be able to help you each step along the way and make sure that you do not miss any important deadlines.
Aside from your tickets and bond paperwork, you will also receive a DOR Form 2385 Notice of Suspension or Revocation of Your Driving Privilege. The purpose of this Notice is two-fold. First, it serves as your Temporary 15-Day Driving Permit. Once the 15 days has elapsed, your license will be suspended unless you have requested an Administrative Hearing.
How to Request Your Administrative Hearing
In order to formally request an Administrative Hearing to challenge the DOR's basis for suspending or revoking your driving privileges, you must fill out the bottom portion of Form 2385 and send it into the DOR before your suspension or revocation begins. An attorney can request your Administrative Hearing for you as well.
What Happens After Your Administrative Hearing is Requested?
Assuming your request was timely made, which an attorney will make sure of for you, the DOR will then issue you a Temporary Driving Permit, and set the matter for a hearing. If you do not request an in-person hearing, then it will be set for a telephonic hearing. The Temporary Driving Permit will allow you to drive pending the outcome of the Administrative Hearing.
What Actions Need to Be Taken Before The Hearing?
There are a number of steps which you and your attorney will need to do in order to give you the best chance at a successful outcome.
Request a Copy of the Arrest Report
Your attorney should order a copy of the DOR's record of the DWI arrest to give you and your attorney plenty of time to review it for weaknesses. The record will consist not only of a copy of your 5-Year Driving Record, but also the arresting officer's report, the Alcohol Influence Report (A.I.R.) prepared in connection with DWI arrests, the Breathalyzer result with BAC, and the Breathalyzer Maintenance Report.
The officer will not show up or the Administrative Hearing if your attorney does not subpoena him. Occasionally this is to your benefit; however, only a careful review of the police report can determine if the officer's testimony can help you. A skilled DWI Attorney will often serve the officer with the subpoena in order to get his testimony on the record for potential use later in your criminal case.
Hire a Court Reporter
A final step to take before the Administrative Hearing, especially if you have subpoenaed the officer to give testimony, is to hire the services of a certified court reporter. The reason for doing so is to enable you to procure a transcript of the hearing. A transcript is an official word-for-word record of what happens during the hearing, especially of what is said by the witness(es). This becomes evidence which can be useful in negotiating on your behalf in your criminal case.
At your Administrative Hearing, your attorney will appear on your behalf. Your appearance is not necessary but you do have the right to be there. You should talk with your attorney about whether your appearance will be beneficial or not.
Along with your attorney, the Court Reporter you hired will also be present, as well as the arresting officer, if you subpoenaed him, and the Hearing Officer for the Director of Revenue.
What is the Issue to Be Determined?
At your hearing, the sole issue to be decided is whether by a preponderance of the evidence (a legal term of art which essentially means “more likely than not”), you were driving a vehicle with a blood alcohol content of 0.08% or greater.
At the outset of the hearing, the Hearing Officer for the DOR will submit the police report and A.I.R. into the record. By statute, so long as the report contains the bare minimum evidence it is the only evidence that the DOR requires in order to sustain the suspension or revocation of your driving privileges. Many attorneys will simply do what is called "Submitting the Case on the Record". If your attorney does this, then you have already lost.
When the arrest report is submitted on the record, your attorney should also make objections on the record to as much of the report as possible.
After the report is submitted on the record, your attorney now has the opportunity to call the arresting officer to the stand. Just like in court, the witness will first be sworn in. Then your attorney can ask the arresting officer about his/her experience, level of training for DWI arrests, and the specifics of your case. This will all be documented thanks to your Court Reporter.
Since there is no opposing side, there will be no attorney cross-examining the officer in order to bolster the DOR's case. This is a great advantage for which your attorney can take advantage.
What is the Standard at Your Administrative Hearing?
In order to sustain the suspension or revocation of your license, the Hearing Officer must find that based upon a preponderance of the evidence presented at the Administrative Hearing, you were arrested/stopped upon probable cause to believe you were driving a motor vehicle while the alcohol concentration in your blood was at or above the limit required by law.
"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 Hearing Officer's Decision
At the conclusion of your hearing, the Hearing Officer will take the matter under submission (i.e., he or she will issue their decision later rather than ruling on the spot). Usually, within two days, the Hearing Officer will issue their written decision in a document called Findings of Fact and Conclusions of Law.
The decision will be either to sustain the original suspension or revocation, meaning that you lost the hearing and your driving privileges will be suspended for 90 Days; or, to overturn the suspension or revocation, meaning you won the hearing. If you win, your license will be returned to you by the DOR and your Driving Record will not reflect a suspension or revocation.
What do You do if You Lose the Hearing?
If you lose the hearing, your license will be suspended for a minimum of 90 Days depending on your 5-Year Driving Record. The suspension or revocation will begin 15 Days from the date the Hearing Officer issues their Findings of Fact and Conclusions of Law.
Right to Appeal
If you lose the hearing, you have the right to file a Petition for Trial De Novo before the Circuit Court of the County you were arrested in. In St. Louis County, this means your Petition will be assigned to an Associate Circuit Judge of St. Louis County Circuit Court.
You only have 15 Days from the Date of the Officer's Decision to File Your Petition for Trial De Novo.
"De Novo" means "anew", as such what happened at the Administrative Hearing doesn't matter. However, if the witness testifies to something different during the Trial De Novo than they did at the Administrative Hearing, then you can use the transcript of that hearing to your advantage at the Trial De Novo.
At the Trial De Novo, the DOR will be represented by a staff attorney from its General Counsel's Office. Unlike the Administrative Hearing, this will be an adversarial proceeding. The same standard and issue apply to the Trial De Novo as applied to the Administrative Hearing. This hearing will also be on the record and a transcript can once again be procured of the testimony given at this trial.
Unlike when you requested your Administrative Hearing, you will not receive a Temporary Driving Permit pending the outcome of your Trial De Novo. Your suspension or revocation will be in effect during this time.
Be aware that a successful outcome in your Administrative Hearing or Trial De Novo (the administrative case) does not affect the status of your criminal case. The criminal and administrative cases are two different cases with different standards.
Hire a St. Louis County DWI Attorney to Defend Your Rights
If you were arrested for DWI and blew into breathalyzer, make sure you hire a skilled DWI attorney like Anthony S. Bretz right away. Don't delay or you will lose your right to drive.
*The choice of a lawyer is an important decision and should not be based solely upon advertisements.