• Evan M. Howard

The DWI Process in Missouri. Part 4: The Breathalyzer, to Blow or not to Blow?


The question that every criminal​​ defense attorney gets, possible every attorney no matter what type of law they practice, is, “do I take the breathalyzer or not?” And you’ve probably already heard that if you don’t blow you’ll lose your driver’s license. If you’ve ever been asked to take a breathalyzer by a police officer, I’m sure they’ve even told you that if you don’t take the test you’ll lose your license. Is that true?

The answer is yes and no. To an extent, the officer is correct in that there is a law in the State of Missouri that states a failure to take a breathalyzer test will result in an automatic one year suspension of your driving privileges. But, with legal action and quick response time by a criminal defense attorney, he or she can most likely get that suspension of your driver’s license stopped. Why is that?

In Missouri there are two different types of actions that occur when you’ve been accuse of driving while intoxicated. There is the criminal process that we all know about, but there is another civil action involving just your driver’s license. This civil action is started when the arresting officer files a report with the Missouri Department of Revenue. You are then given a Notice of Suspension and have 15 days to respond. Driving while intoxicated charges are extremely time sensitive when it comes to the civil part of the process.

Taking the breathalyzer test is an important piece to the puzzle of defending your driving while intoxicated charge. If you contact an attorney after your arrest, that will most likely be one of the first questions they ask you; “did you blow?” Taking the test or not taking the test results in two completely different paths.

Important: In the State of Missouri, after being asked to take a breathalyzer test, the officer is legally required to give you 20 minutes to contact an attorney for legal advice. The problem with that is, there aren’t too many attorney’s in their office at 3:00 a.m. waiting for your call. At Howard Law, we have our phones forwarded to our cell phones so when you call in the middle of the night we won’t miss your call. Put the Howard Law phone number in your cell phone right now, it’s better to be safe than sorry; (314) 325-9868.

You Took the Breathalyzer

After you’ve been arrested, the arresting officer will give you a Notice of License Suspension. This Notice informs you your license will be suspended in 15 days. If you do nothing, your driving privileges will be suspended on the 16th day. If it’s your first offense, you are most likely looking at a 90 day suspension.

In the Notice of License Suspension, it will also detail out what is needed to file an appeal. By filing an administrative appeal with the Department of Revenue, you are essentially playing the suspension status your of license on hold until you have a chance to get a hearing. It is possible to handle this appeal on your own, but it wouldn’t be the wisest of decisions.

When it comes to the Administrative Hearing, you’ll have the option to either request a phone hearing or an in-person hearing. If you’re doing this appeal on your own, I’d suggest you request an in-person hearing. This is another reason why you’ll probably want an attorney to help you through the process; the Department of Revenue has a pretty high win rate when it comes to these appeals.

During the hearing, it will give you the opportunity to cross-examine the arresting officer and probe as much information out of his or her as possible. Information that could be useful in your criminal case. If you win the hearing, your license will not be suspended. If you lose, it was still an opportunity to extend that 15 day notice period to get your affairs in order and also gather useful information from the arresting officer on cross-examination.

If you lose your appeal, for most first time offenders, you will have two options; (1) 90 day interlock restricted driving with an interlock device or (2) a 30 day suspension followed by 60 days of restricted driving privileges.

You Refused the Breathalyzer

After refusing to take the breathalyzer and being arrested, you will be given the same Notice of License Suspension. The Notice informs you that after 15 days, from the arrest, your license will be suspended. If you don’t do anything, on the 16th day your license will be suspended for one year because of your failure to take the breathalyzer.

Police officer’s love to use this as leverage against you when trying to get you to take the test because, well to be honest, it works. Not having a driver’s license for an entire year is inconvenient but also a very scary reality to face. While their threat may seem true, you can get that suspension lessened or even stopped altogether if you have an attorney.

In order to stop the one year revocation, you will definitely need to hire an attorney. Your attorney will file a Petition for Review in the circuit court where you arrest occurred. Once the Petition is filed, it essentially pauses the license suspension process. You only have 30 days to file the Petition so hiring an attorney as soon as possible is extremely important.

After the Petition is filed there are three main outcomes; (1) a negotiated disposition, (2) winning at trial, or (2) losing at trial. If you go to trial on the Petition, this will give your attorney an opportunity to cross-examine the arresting officer and gain valuable information that can be used in the criminal side of your case. If you happen to lose the Petition, your license will be suspended for one year, but you may have the ability to request a hardship license. A hardship license allows you to drive to work and school, but that’s all. Getting pulled over at midnight when you work a day job and don’t go to school will get you a ticket and possibly another arrest.

In order to get your license back after a suspension you’ll be required to pay a $45 reinstatement fee to the Department of Revenue and get an SR-22 from your insurance company.

Stay tuned for the last part of this series, Part 5: The Criminal Case. For immediate help, guidance or advice, contact Howard Law at (314) 325-9868.

Next: The DWI Process in Missouri. Part 5: The Criminal Case

About The Author

Evan M. Howard is the managing attorney for Howard Law, a St. Louis business law and criminal defense law firm based in Clayton, Missouri. Focused on giving honest, quick and effective representation to all its clients. With a background in business and experience dealing with tough criminal prosecution cases, Howard Law is ready to help guide you through your legal matter.


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Howard Haake is a St. Louis law firm based in Clayton, Missouri focused on business law, criminal defense, family law and estate planning. We handle all business matters from incorporation to acquisition as well as criminal defense charges from arrest to trial. Howard Haake helps clients in St. Louis, St. Charles, St. Peters, O'Fallon, Brentwood, Columbia, Eureka, Richmond Heights, Clayton, Jennings, Kirkwood, Maplewood, Manchester, Northwoods, Olivette, University City, Creve Coeur, Maryland Heights, Bridgeton, Florissant, Ladue, Webster Groves, Hazelwood, Hillsboro, Washington, Union, Hermann, Pacific, and throughout St. Louis County, St. Charles County, Jefferson County, Franklin County, Warren County, Gasconade County, Boone County, Crawford County, Montgomery County, and Marion County.

​​DISCLAIMER: The information on this website is for general and informational purposes only and should not be interpreted to indicate a certain result will occur in your specific legal situation. Information on this website is not legal advice and does not create an attorney-client relationship. You should consult an attorney for advice regarding your individual situation. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.

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© 2015 by Howard Haake, LLC.

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