When a person is charged with his or her second DUI (called DWI in Missouri), that person faces higher penalties as a result of the subsequent conviction. While a first DWI is serious, a second offense can significantly enhance the potential penalties you face. This does not mean there is no hope. You can raise defenses to your charge to reduce or even dismiss the charges against you.
A second-offense DWI can be a frightening thing to face, but with the assistance of an experienced Missouri DWI lawyer, any questions or concerns you have about your charges will be effectively addressed. You can defend your case to protect your constitutional rights.
Second-Offense DWI in Missouri
In Missouri, it is illegal to operate a motor vehicle while a person is intoxicated by drugs or alcohol. The charge of "driving while intoxicated" or DWI is Missouri's version of a "driving under the influence" or DUI charge. This can happen anywhere in Missouri, and the consequences of a conviction are serious.
In Missouri, it is illegal to drive under the influence of alcohol at the following blood alcohol content (BAC) levels:
- 0.08% for most drivers 21 and over,
- 0.04% for commercial drivers, and
- 0.02% for individuals under the age of 21.
You may also be arrested and charged even when your BAC does not meet these thresholds, either because the police accuse you of being intoxicated by drugs, or you were intoxicated by alcohol even though you were under the "legal limit."
What the Prosecutor Must Prove: Second DWI
There are certain elements that a Missouri prosecutor must prove in order to convict you of this criminal offense. Each element must be proven "beyond a reasonable doubt" which is a very high burden of proof. If the prosecutor fails to prove each and every element beyond a reasonable doubt, you are not guilty of the crime charged against you.
Operation of a Vehicle
The prosecutor must prove that you were operating a vehicle. This, of course, includes driving or steering the vehicle, but it can also include actual physical control of a vehicle. "Actual physical control" means being in a position to restrain or regulate a vehicle's movements. This can include the unexpected situation such as
- sitting behind the wheel but not driving,
- sleeping in your car in the driver's seat with the key in the ignition, or
- grabbing the wheel or influencing the driver of the vehicle while it is in motion.
The prosecutor must prove that you operated the vehicle while in an "intoxicated condition." This means that a person is under the influence of any combination of alcohol, controlled substances, drugs (legal or illegal), or has a high BAC.
The prosecutor can attempt to prove intoxication through the use of the following.
- Breath Tests: Breathalyzer given at the station which shows the driver's BAC within two hours of driving.
- Blood Tests: Shows the presence of alcohol or drugs in the driver's body.
- Field Sobriety Tests: "Tests" designed to look for signs of intoxication without scientifically testing your bodily substances. These include the Horizontal Gaze Nystagmus Test, the Walk and Turn Test, and the One Leg Stand Test.
Prior DWI Conviction
To prove a second-DWI offense, which is subject to higher penalties, the prosecutor must prove that you were convicted of one prior DWI offense.
Penalties for Second-Offense DWI
Those convicted of a second-DWI offense are guilty of a Class A misdemeanor, with increase penalties as compared to a first DWI conviction. If convicted, a person faces the following potential penalties.
- A maximum jail sentence of up to one year (must serve at least 10 days in jail before possible suspension of sentence or probation).
- Possible two-year probation sentence.
- Potential fines of up to a maximum of $1,000.
- Driver's license suspension for one year up to a maximum of five years.
- Installation of an ignition interlock device (device that prevents the vehicle from starting if the driver's BAC is over a certain limit).
- Continuous alcohol monitoring or verifiable breath alcohol testing (performed up to as many as four times per day).
- Participation in a drug or alcohol treatment program.
- Possible requirement of SR-22 (high risk) automobile insurance.
If the second-offense DWI causes injury to another, it may instead be a felony level charge, subject to very harsh penalties.
Defending Your Missouri Second-Offense DWI
Just because you are charged with a second-offense DWI in the state of Missouri, does not mean that you are guilty of the crime. All too often defendants believe there is no hope, that they will be found guilty, or that the system is stacked against them. With the right legal help by your side, you can present a defense to challenge the allegations against you.
Challenging Breath or Blood Tests
Breath and blood tests are not always accurate. This is especially true if they are performed incorrectly by law enforcement or the lab, which occurs more often than you might think. An experienced DWI attorney is familiar with these procedures and can look for flaws in their use.
Challenging Field Sobriety Tests
These so-called "tests" are notoriously inaccurate. Their tendency to create false positive indicators of intoxication is well-known in the legal community, but not to most jurors. It takes a proper defense to help the jury understand that losing your balance on a one leg stand test is not enough to show intoxication, for example.
Filing a Suppression Motion
When evidence is collected in a way that violates the Constitution, or the officer pulled you over for an unconstitutional reason, the evidence against you can be "suppressed" or kept out of evidence. If the prosecutor cannot use the evidence against you, he or she may be unable to prove the case. When this happens, a reduction in charges or even a full dismissal may be possible.
Consult an Experienced Missouri DWI Attorney
When you face the prospect of your second-DWI offense, it can seem daunting. Joshua Wilson is an experienced DWI attorney who can help you develop the best defense possible to protect your rights.