After a conviction for driving while intoxicated (DWI), drivers learn about the harsh penalties involved. A second DWI carries additional penalties that keep most drivers unable to drive for a year or more. The penalties for third and subsequent DWI are even more serious. Unlike a first or second DWI, a third DWI is a felony in Missouri.
Just because you were arrested for drinking and driving a third time does not mean that you have to plead guilty. Your experienced Missouri DWI lawyer can raise defenses to get the charges dropped or reduced. Contact the Joshua Wilson Law Firm with any questions or concerns you have about your charges and constitutional rights.
Third-Offense DWI in Missouri
Under Missouri law, it is illegal to operate a motor vehicle while a person is under the influence of alcohol, drugs, or a combination of drugs or alcohol. The charge of "driving while intoxicated" or DWI is a common but serious offense and carries heavy penalties.
Driving with an excessive blood content (BAC) is generally measured by testing the driver's breath, blood, or urine. In Missouri, it is illegal to drive at the following alcohol levels:
- 0.08% for most drivers 21 and over,
- 0.04% for commercial drivers, and
- 0.02% for individuals under the age of 21.
However, the police can still arrest a driver with a BAC below the limit if there is probable cause to believe the driver is in an intoxicated condition by alcohol and/or drugs.
What the Prosecutor Must Prove: Third DWI
A Missouri prosecutor must prove each element of the offense "beyond a reasonable doubt" for a conviction. If the prosecutor fails to prove each element, the defendant is not guilty of the crime. The elements of a DWI include showing the individual was:
- Operating a vessel, and
- In an intoxicated condition.
Operation of a Vehicle
Operating a vehicle is more than just driving the car. Operating a vehicle is the physical control of a vehicle. Even if the car has not been started, sitting in the car with the keys in the ignition may be considered operation of a vehicle in Missouri.
An “intoxicated condition” means that a person is under the influence of alcohol or drugs or any combination of alcohol and drugs. Drugs include illegal drugs like marijuana or methamphetamines, as well as prescription drugs or even over-the-counter medication if it can impair the driver's ability to operate the vehicle.
Impairment can also be shown through having a BAC over the limit. The prosecutor can attempt to prove intoxication through the use of the following.
- Breath Tests: Breath testing is generally done after an arrest at the police station, sheriff's office, or highway patrol station. These chemical tests show the driver's BAC within two hours of driving.
- Blood Tests: Blood tests can identify substances beyond just alcohol, and test for drugs in the driver's body.
- Field Sobriety Tests: Field sobriety tests are the roadside tests that law enforcement ask drivers to take to indicate signs of intoxication. The standardized field sobriety tests include the Horizontal Gaze Nystagmus Test, the Walk and Turn Test, and the One Leg Stand Test.
Prior DWI Conviction
To prosecute a 3rd-DWI in Missouri, the prosecutor also has to show that the defendant had two prior DWI convictions. Missouri has a look-back period of 5 years when it comes to prior DWIs. That means that the state will only consider prior DWIs within the past 5 years to determine if the defendant is charged with multiple DWI charges.
For example, in 2019, a driver is arrested for a DWI. The driver has 2 prior DWI convictions, one in 2016 and one in 2012. The driver would face charges for a 2nd DWI because the 2012 DWI was outside of the 5-year look-back period.
Penalties for Third-Offense DWI
Those convicted of a third-DWI offense are guilty of a Class E felony. A driver is considered a “persistent offender” for a third DWI within the past 5 years. The penalties for a third DWI conviction in Missouri include:
- A maximum of 4 years in jail (must serve a minimum of 30 days in jail or 60 days of community service).
- Potential fines of up to a maximum of $10,000.
- Driver's license suspension for 1 year up to a maximum of ten years.
- Installation of an ignition interlock device for reinstatement for at least 6 months.
- Continuous alcohol monitoring or verifiable breath alcohol testing (performed up to as many as four times per day).
- Participation in a substance abuse traffic offender program.
- Requirement of SR-22 (high risk) automobile insurance.
The consequences of a felony conviction go beyond criminal penalties. A felony record can impact an individual for the rest of their lives, including limitations on jobs, housing, benefits, and gun ownership.
Defending Your Missouri Third-Offense DWI
An arrest for a DWI does not mean you are guilty of a crime. There are a number of potential legal defenses that your Missouri DWI lawyer can raise to get the charges dropped or result in a not guilty verdict.
Challenging Chemical Tests
Chemical testing of a driver's blood or breath after an arrest is not always accurate. There are a number of reasons why the testing results can be incorrect, including:
- Improper cleaning or maintenance of the testing machines,
- Operator error,
- False positives related to food, medicine, or medical conditions,
- Machines not calibrated properly, or
- Test sample mix-up or contamination.
Challenging Field Sobriety Tests
While police like to rely on field sobriety tests, there are a number of problems with these tests that can be challenged in court. There are all sorts of reasons why someone can “fail” these subjective test that are unrelated to alcohol.
Your Missouri DWI defense attorney can investigate how the tests were performed and identify reasons why the driver might have failed the tests, including medical issues, footwear, time and location of the test, and improper instructions.
Consult an Experienced Missouri DWI Attorney
The consequences of a third DWI conviction are much more serious than a second DWI. Joshua Wilson is an experienced Missouri DWI attorney who can help you develop the best defense possible to protect your rights.