Implied Consent & Chemical Refusals

Missouri's Implied Consent law provides that, under certain circumstances, a driver operating a motor vehicle on public highways in Missouri impliedly consents to a chemical test of his or her blood, breath, or urine. This week we examine Missouri's Implied Consent law and how refusing a chemical test presents unique challenges to drivers in St. Charles.

This week we take a look at implied consent and chemical refusals, how these concepts affect drivers, and how drivers can challenge refusal revocations.

Any person who operates a vehicle upon the public highways of this state, a vessel, or any aircraft, or acts as a flight crew member of an aircraft shall be deemed to have given consent, subject to the provisions of sections 577.019 to 577.041, to a chemical test or tests of the person's breath, blood, saliva, or urine for the purpose of determining the alcohol or drug content of the person's blood...
§577.020 RSMo.

The implied consent law creates a presumption of consent to a chemical test as well as consequences for refusing to actually submit to a test. §577.020 RSMo. sets forth six individual fact patterns that give an officer grounds to request a driver submit to a chemical test (it's worth noting that an officer may request the driver submit to up to two tests). As we saw last week, this statute also has different standards for drivers over 21 and those under 21. Drivers under the legal drinking age are deemed intoxicated if their blood alcohol content (BAC) is 0.02% or greater.

When an officer believes the driver has met one of the six criteria of §577.020(1)-(6) RSMo., the officer will request that the driver submit to a chemical test. §577.041 RSMo., and case law interpreting this provision, requires the requesting officer to inform the driver that: a chemical test is being requested; if the driver refuses, the refusal may be used against the driver in a criminal case; and if the driver refuses the chemical test, the driver's license will be revoked immediately. A refusal revocation is a one-year suspension of the driver's license. See §302.574.3.

Upon receipt of the officer's report, the director shall revoke the license of the person refusing to take the test for a period of one year; or if the person is a nonresident, such person's operating permit or privilege shall be revoked for one year; or if the person is a resident without a license or permit to operate a motor vehicle in this state, an order shall be issued denying the person the issuance of a license or permit for a period of one year. §302.574.3 RSMo.

Similar to the administrative alcohol suspension, drivers who face a revocation for refusing a chemical test have a civil route to contest the suspension. Unlike the administrative alcohol suspension, the driver does not appeal directly to the Director of Revenue via an administrative hearing but rather files a Petition for Review directly with the Court. See §302.574.4 RSMo.. The driver's petition for review must be filed within 30 days of the date the driver was notified of the revocation. The 30-day filing deadline is especially important in relation to the county of venue as set by the statute. If the driver's petition is filed in the wrong county, the Court cannot transfer the case to the proper county once the 30 days have lapsed. In such a case, the driver is without recourse and must serve his or her suspension.

The Petition for Review is filed in the county in which the arrest or stop occurred. §302.574.4 RSMo.. The scope of review is limited to whether the person was 1) stopped; 2) the officer had reasonable grounds to request the person submit to a test; and 3) the driver refused the test. Each of these points must be found in the affirmative in order for the Court to uphold the suspension.

As we saw in administrative alcohol suspensions, the Exclusionary Rule does not apply in civil proceedings. The Exclusionary Rule works to prevent the admission of evidence obtained following an illegal stop or illegal arrest. An illegal stop does not prevent a refusal revocation. See Sullins v. Director of Revenue, 893 S.W.2d 848 (1995).

The Director's evidentiary burden, as defined by §302.574 RSMo., with regard to each of the elements is "reasonable grounds.” The courts have addressed this legal standard in relation to the better known Probable Cause standard and have found that reasonable grounds is synonymous with Probable Cause. Gelsheimer v. Director of Revenue, 845 S.W. 2d 107 (Mo.App.1993). At the hearing, the Director must prove that 1) the driver was arrested for an alcohol-related traffic offense; 2) the driver was tested in accord with Department of Health regulations; and 3) the test results show the driver's BAC was at or above the legal limit. Bearing in mind the effect of §302.312 RSMo., the Director can make a sustainable case solely using copies of the arresting officer's alcohol influence report, narrative, and the citation issued by the police officer. The Director doesn't need to introduce live testimony. Evidence of driving sufficient to uphold a refusal revocation may be direct or circumstantial. Direct evidence of driving is not strictly required to uphold the revocation. See Stenzel v. Director of Revenue, 536 S.W. 2d 163 (Mo.App. 1976); Delaney v. Director of Revenue, 657 S.W. 2d 354 (Mo.App. 1983).

Drivers have no constitutional right to speak with counsel prior to a test being administered. §577.041.3 RSMo. provides drivers with a limited amount of time to contact counsel. Known as the "20-minute rule", when a driver expressly requests to speak to a lawyer, the driver will be given 20 minutes to contact an attorney. Beyond the 20-minute rule, drivers have no independent right to counsel.

When the petition for review is filed, the driver has an opportunity to request from the Court a Stay Order. The Stay Order operates to prevent the refusal suspension from becoming effective. A Stay Order will not be issued automatically, and a driver is not entitled to a one as a matter of course.

Once granted, the Stay Order will prevent the suspension from becoming effective. Provided a driver is not otherwise suspended, the driver will maintain full driving privileges.

Drivers face unique challenges when fighting chemical refusals. The language of the implied consent law, along with the Court’s decisions interpreting the law, make these cases highly technical. A driver's choice of attorney can make the difference between a one-year suspension and full driving privileges.

The Ryan Law Firm

415 N. Second St.
St. Charles, Missouri 63301

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