We often hear the refrain from lawyers and non-lawyers alike that if an officer asks a driver to take a breath test or to consent to a blood draw, the driver should always refuse. This commonly held belief is simply incorrect. There are often many factors at play for a person confronted with this traumatic and very difficult situation. A driver confronted with this most unpleasant situation needs to understand his obligations under the law and the consequences of a refusal. It is also imperative that the driver have at least a basic understanding of the factors that go into the decision making process to determine whether it is in the driver’s best interest to consent or to refuse the request for chemical testing. This article is not intended to be a legal treatise on these issues. Rather, the article is written to aid the general public as well as lawyers who do not routinely practice in this area of the law to understand and appreciate the basic law and issues involved.
The Implied Consent Law
Missouri has a statute that is referred to as “the implied consent law.” The statute states that if a police officer has “probable” cause to believe that a person who is driving “a motorized vehicle” while under the influence of alcohol or drugs impliedly consents to a chemical test for the purpose of determining the drug or alcohol content of his blood. The chemical tests authorized by law to which one must consent or face consequences are “the person’s breath, blood, saliva or urine.” The officer determines which test he will request the driver to consent to take. The officer will read from a form that basically contains the implied consent law and the language that if the driver refuses to take the test the driver’s driving privileges will be revoked for one year. The driver does not have a choice of which test to take. The officer can request the driver to take any two of the specified tests but no more. (RSMo 577.020).
The breath test is most often performed at a “station” such as at the county sheriff’s department or police station, though at times they are performed in a van set up for that purpose. A van is most often the location for the test when the police are conducting a “deterrence roadblock stop,” and the van is at the location of the stop along with a tow truck to tow the vehicles of DWI suspects. It is the refusal to take the breath test at the station or in the van that triggers the bad consequences for the driver. Of course if the driver refuses any one of the other tests specified by the statute, blood, saliva or urine, the legal consequences are also triggered. Many officers, especially those assigned to a specialized DWI detection unit, carry in their patrol vehicles a preliminary alcohol-content testing device, or commonly referred to as a portable breathalyzer. At the site of the initial traffic stop, the officer may well ask the driver if he will take the portable breath test. This test is considered by law as a part of “field sobriety testing”, and there is no penalty for refusing this test. On the other hand there is absolutely nothing to be gained by the driver in refusing the test. The test results may not be admitted into evidence nor can the fact that the driver refused to consent to this test be used against him as evidence of intoxication in a criminal prosecution. There is one likely downside of refusing to blow into the officer’s portable machine. The officer may adopt a very unpleasant attitude toward this uncooperative driver. The biggest problem we have seen is the officer will ask the driver at the site of the traffic stop if he will submit to this preliminary breath test. If the driver refuses consent, the officer then will ask again at the station if he will take a breath test. The driver is often confused, because he knows that he has already refused a breath test. If the officer does not take the time to patiently explain that this second test at the station is a different test and the fact that the driver refused to be tested by the “portable” machine is of no consequence, the driver will often just say he refuses without really understanding his situation and the consequences.
The Legal Consequences of Refusal
Any “refusal” to comply with Missouri’s implied consent law has serious consequences, but it is not currently a crime in Missouri to refuse to comply with the implied consent law. If you are deemed to have “refused,” the Department of Revenue will revoke your driving privileges in the state of Missouri for one year, whether you were impaired or not, and regardless of the outcome of the prosecution for driving while intoxicated or other alcohol-related driving offense. If the driver’s driving privileges are revoked for a refusal, the driver is not eligible for a “hardship” license (one that would let you drive to work, for example) for ninety (90) days. Furthermore, the “refusal” to comply with the law can be used against the driver in court in any criminal case that results as evidence of the driver being under the influence of alcohol or drugs; this means the State is permitted to tell the judge or jury the driver refused to take the test and to argue to the judge or jury that the driver refused the test because he knew he would not pass the test, because he knew he was intoxicated.
Adding insult to injury, when a driver refuses any of the tests requested, the officer will mark “Refused” thus triggering the year’s revocation of the driver’s driving privileges, and then the officer may very well seek a warrant for the involuntary taking of the driver’s blood for analysis. If a warrant issues, the driver has created a situation where 1. His driving privileges are subject to being revoked for one year, 2. His refusal to consent to the test can be used as evidence against him in a criminal prosecution, and 3. The result of the blood test analysis can also be used against him in a criminal prosecution. As of this writing, because of a Missouri Supreme Court case, if the driver refuses the officer’s request to be tested, in most circumstances, the officer is required to obtain a warrant before having blood drawn from a driver suspected of driving under the influence. The Missouri case requiring a warrant has been appealed by the State to the United States Supreme court, and the case is currently pending before that court.
Presently, the driver may refuse his consent to be tested without incurring any criminal liability; however, there has been recent legislation proposed that would make it a misdemeanor offense for a driver to refuse his consent to a chemical test when requested by an officer who has probable cause to believe the driver is driving on a public roadway while under the influence of drugs or alcohol. It is not unlikely that sometime in the future that proposed law will again be before the legislature for a vote and could very well become the law.
Part 2 of this blog will deal with whether a driver who is asked to consent to the taking chemical tests should give his consent or refuse.
**DISCLAIMER: This article is intended to provide general information and is not and should not be taken as specific legal advice or as creating an attorney/client relationship with any reader. Any specific situation requires specific legal advice. Anyone facing a legal problem should contact an attorney for specific legal advice and should not rely solely on any information contained in this article. An attorney licensed in the state of Missouri writes all articles and all legal information discussed addresses the law as it stands in Missouri at the time of writing. Not only may there be significant differences in how the law would be applied in Missouri versus other states, the law is not static and can change over time. Nothing in this article is intended to have any relevance outside of the state of Missouri and should be taken as general information only, not legal advice.