Refusal of Chemical Testing

Updated on March 23rd, 2020

From the moment you are detained on suspicion of DWI, the officer is gathering evidence guilt against. The officer is observing everything about you (i.e., speech, eyes, smell, etc.). The officer will ask specific guilt seeking questions (i.e., how much have you had to drink, where are you coming from, where are you going, etc.). They also may ask you to take standardized field sobriety tests, a portable breathalyzer test, or a chemical test. You want to provide the officer as little evidence against you as possible, but refusing a chemical test is not as simple as refusing to answer questions.

Missouri has an “implied consent” law which deems a driver to have “consented” to a breath, blood, or urine test to determine blood alcohol concentration (BAC) or to test for any drugs in their system if the driver:
  • has been arrested and there are reasonable grounds to believe he/she was intoxicated while driving;
  • was involved in a vehicle collision or caused injury or death; or
  • is under 21 years old and there are reasonable grounds to believe they were driving with a BAC of at least .02%.

You can refuse chemical testing. If you refuse to take a chemical test, you stand to lose your license for a year. However, before refusing, you should always ask to speak with an experienced DWI attorney like myself. This request invokes your 20 minute right to speak to an attorney before making your decision. If you refuse chemical testing, the officer will seize your Missouri license (an out of state license may not be seized) and provide you with a Form 4323. This Form 4323 wil act as your 15 day temporary driver's license. It is extremely important you contact an attorney in those 15 days. An attorney can file a Petition for Review (PFR) and request a stay order to allow continued driving. Therefore, your license will not be immediately revoked.                                                                         

An attorney can challenge your one year license revocation during your PFR. A judge will decide by  a preponderance of the evidence, whether: (1) you were arrested or stopped; (2) you were arrested upon probable cause to believe you were operating a motor vehicle while intoxicated; and (3) you refused to submit to a chemical test. Not only does a PFR allow you to continue to drive, you may win your case through negotiations or trial and not lose your license at all.

A refusal may also help your criminal case, as the prosecutor will not have "scientific evidence" (i.e., a chemical test). The case will likely rest solely on the arresting officer's opinion of intoxication. This lack of evidence may help your attorney turn the case in your favor and help to ensure you get the best possible result.

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Updated on March 23rd, 2020