A prior offender is a driver who at the time of his stop and detention as a DWI suspect has previously entered a plea of guilty to or been convicted after trial of an alcohol/drug related driving offense. For this person, whether to consent or to refuse chemical testing of his blood alcohol content involves considerations not present in the case of the driver who is experiencing his first contact with law enforcement as a DWI suspect.

The driver who finds himself in this situation needs to already be aware of the consequences and evidentiary implications of a refusal. Further, he needs to be aware of his right to take 20 minutes to contact an attorney once the officer has read him the implied consent law. He needs to use those 20 minutes to contact a lawyer whose telephone number he has on his person. Even if his DWI arrest occurs in the middle of a normal business day, the odds of directly contacting an attorney within the time allotted are not good. I know of no lawyers whose day is spent sitting by the telephone waiting on a call from someone being detained as a DWI suspect.

If the driver is able to get a lawyer on the phone, the driver needs to be able to provide the lawyer with precise information about his previous alcohol/drug related driving history. The law and the prosecuting authorities in most venues take a hard stance with drivers who are considered prior offenders. The law first of all takes away jury sentencing if the driver should elect trial by jury. The jury returns a verdict of guilty or not guilty. If guilty, then the judge decides the sentence. The penalty range for a prior offender is enhanced by law. For example, the penalty range to which the court may sentence a person being prosecuted for his second alcohol/drug related driving offense is exactly twice that of a person being prosecuted for his first offense. The stakes get higher with the number of prior offenses the driver has.

When the driver contacts the lawyer, the lawyer may be able to discern that the driver is obviously impaired. If that is the case, the lawyer, in my opinion, should tell the driver to refuse the test. As a lawyer who has tried these types of cases to a jury, I know that I had rather deal with the evidence that the driver refused the test than with a high test result. If the driver is convicted, as a prior offender, it is likely that he will also have had a previous suspension or revocation of his driving privileges stemming from the last DWI arrest; therefore, if convicted of the present offense, it is also likely that he will lose his driving privileges for a year anyway; therefore, obtaining a favorable result for the driver on the criminal charge of DWI prior offender or prior and persistent offender is the real objective and not saving the driver’s driving privileges.

Once the driver has told the lawyer that he has a prior alcohol/drug related driving conviction or plea of guilty, unless the driver does not “sound” intoxicated during the conversation and tells the lawyer that he only had one or two drinks 2 or 3 hours ago, the lawyer is going to advise the driver to refuse consent. If to the lawyer the driver seems to not be under the influence and the driver clearly and emphatically insists to the lawyer that he could not be intoxicated and is confident that he would “pass” the chemical test, the lawyer had another consideration to ponder being deciding how to advise the driver.

The lawyer will be aware that if the driver has a prior offense, the arresting officer will have been aware of that fact before he ever made the decision to take the driver to the station for one of the allowed tests. If the officer has learned through the MULES system that the driver has had a previous plea of guilty or conviction of an alcohol/drug related driving offense, that driver is going to be handcuffed and taking to the station for further testing if the officer has detected even a hint of alcohol on or about the driver’s presence; so, it could well be that the driver actually has a low blood-alcohol level. In this particular fact scenario, the lawyer may well advise the driver to cooperate and give his consent.

Should the lawyer’s advice, however, ultimately be that the driver refuse consent, the lawyer should be sure to inform the driver that the officer may then seek a warrant (whether the lawyer needs a warrant is currently on appeal to the U.S. Supreme Court) for a blood draw and obtain the damning evidence of a high blood alcohol content without the driver’s consent. The lawyer should also inform the driver that once the warrant is obtained, the officer will take the driver to a medical facility to have the blood drawn by a medical person qualified to do the draw.

**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.