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DUI, DWI & Criminal Legislation in Missouri  

Persistent and prior offenders--enhanced penalties--imprisonment requirements, exceptions--procedures , section: 577.023

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Substantive DUI/Excess Alcohol Offense, Prior/Persistent Offender Statute in a Missouri DUI / DWI / BAC or other drunk driving case

1. For purposes of this section, unless the context clearly indicates otherwise:

(1) An "intoxication-related traffic offense" is driving while intoxicated, driving with excessive blood alcohol content, involuntary manslaughter pursuant to subdivision (2) of subsection 1 of section 565.024, RSMo, assault in the second degree pursuant to subdivision (4) of subsection 1 of section 565.060, RSMo, assault of a law enforcement officer in the second degree pursuant to subdivision (3) of subsection 1 of section 565.082, RSMo, or driving under the influence of alcohol or drugs in violation of state law or a county or municipal ordinance, where the judge in such case was an attorney and the defendant was represented by or waived the right to an attorney in writing;

(2) A "persistent offender" is one of the following:

(a) A person who has pleaded guilty to or has been found guilty of two or more intoxication-related traffic offenses, where such two or more offenses occurred within ten years of the occurrence of the intoxication-related traffic offense for which the person is charged;

(b) A person who has pleaded guilty to or has been found guilty of involuntary manslaughter pursuant to subsection 1 of section 565.024, RSMo, assault in the second degree pursuant to subdivision (4) of subsection 1 of section 565.060, RSMo, assault of a law enforcement officer in the second degree pursuant to subdivision (3) of subsection 1 of section 565.082, RSMo; and

(3) A "prior offender" is a person who has pleaded guilty to or has been found guilty of one intoxication-related traffic offense, where such prior offense occurred within five years of the occurrence of the intoxication-related traffic offense for which the person is charged.

2. Any person who pleads guilty to or is found guilty of a violation of section 577.010 or 577.012 who is alleged and proved to be a prior offender shall be guilty of a class A misdemeanor.

3. Any person who pleads guilty to or is found guilty of a violation of section 577.010 or 577.012 who is alleged and proved to be a persistent offender shall be guilty of a class D felony.

4. No court shall suspend the imposition of sentence as to a prior or persistent offender under this section nor sentence such person to pay a fine in lieu of a term of imprisonment, section 557.011, RSMo, to the contrary notwithstanding. No prior offender shall be eligible for parole or probation until he has served a minimum of five days imprisonment, unless as a condition of such parole or probation such person performs at least thirty days of community service under the supervision of the court in those jurisdictions which have a recognized program for community service. No persistent offender shall be eligible for parole or probation until he or she has served a minimum of ten days imprisonment, unless as a condition of such parole or probation such person performs at least sixty days of community service under the supervision of the court.

5. The court shall find the defendant to be a prior offender or persistent offender, if:

(1) The indictment or information, original or amended, or the information in lieu of an indictment pleads all essential facts warranting a finding that the defendant is a prior offender or persistent offender; and

(2) Evidence is introduced that establishes sufficient facts pleaded to warrant a finding beyond a reasonable doubt the defendant is a prior offender or persistent offender; and

(3) The court makes findings of fact that warrant a finding beyond a reasonable doubt by the court that the defendant is a prior offender or persistent offender.

6. In a jury trial, the facts shall be pleaded, established and found prior to submission to the jury outside of its hearing.

7. In a trial without a jury or upon a plea of guilty, the court may defer the proof in findings of such facts to a later time, but prior to sentencing.

8. The defendant shall be accorded full rights of confrontation and cross- examination, with the opportunity to present evidence, at such hearings.

9. The defendant may waive proof of the facts alleged.

10. Nothing in this section shall prevent the use of presentence investigations or commitments.

11. At the sentencing hearing both the state and the defendant shall be permitted to present additional information bearing on the issue of sentence.

12. The pleas or findings of guilty shall be prior to the date of commission of the present offense.

13. The court shall not instruct the jury as to the range of punishment or allow the jury, upon a finding of guilty, to assess and declare the punishment as part of its verdict in cases of prior offenders or persistent offenders.

14. Evidence of prior convictions shall be heard and determined by the trial court out of the hearing of the jury prior to the submission of the case to the jury, and shall include but not be limited to evidence of convictions received by a search of the records of the Missouri uniform law enforcement system maintained by the Missouri state highway patrol. After hearing the evidence, the court shall enter its findings thereon. A conviction of a violation of a municipal or county ordinance in a county or municipal court for driving while intoxicated or a conviction or a plea of guilty or a finding of guilty followed by a suspended imposition of sentence, suspended execution of sentence, probation or parole or any combination thereof in a state court shall be treated as a prior conviction.

Comments : NOTES:

I. Prior Offender (Class A Misdemeanor)

any driver who has plead guilty or been found guilty of one intoxication-related traffic offense within the previous five years.

II. Persistent Offender (Class D Felony)

any driver who has plead guilty or been found guilty of two or more intoxication-related traffic offense within the previous ten years.

MISSOURI FELONY DRIVING OFFENSES

The effect of criminal driving charges on a driver's driving privilege

The Department of Revenue only takes action on a driver's license from a criminal court proceeding if there is a CONVICTION.

If the court suspends imposition of sentence on the criminal charge, there is no conviction, and the criminal charge will not affect the driving privileges.

There MAY be administrative actions which affect the driving privilege independent of the criminal process.

Revocation for refusing a breath or blood test and administrative suspensions premised on failing a breath or blood test and administrative suspensions premised on failing a breath or blood test are the two most common administrative actions.

A conviction for any felony involving a motor vehicle mandates a one-year revocation. RSMo. Section 302.302(11)

A conviction for involuntary manslaughter or two convictions of DWI within five years of each other mandates a five-year denial of driving privileges. RSMo. Section 302.060(10)

More than two convictions relating to driving while intoxicated received at any time mandate a ten-year denial. RSMo. Section 302.060(9).

NOTE: THESE THREE CONVICTIONS MAY ARISE FROM THE SAME INCIDENT. See Clare v. Director of Revenue, 64 S.W.3d 877 (Mo.App. E.D. 2002).

A hardship may not be granted if the driver has been convicted of a felony involving a motor vehicle. RSMo. Section 302.309(5)(b).

A hardship may not be granted on a five or ten year denial if the driver is otherwise not eligible, such as having been convicted of a felony. Hagan v. Director of Revenue, 968 S.W.2d 704 (Mo. banc 1998).

CRIMINAL FELONY DRIVING OFFENSES

DWI PERSISTENT OFFENDER-- RSMo. 577.023

A persistent offender is one of the following:

A person who has pleaded guilty to or has been found guilty of two or more intoxication-related traffic offenses, where such two or more offenses occurred within ten years of the occurrence of the intoxication-related traffic offense for which the person is charged

Or

A person who has pleaded guilty to or has been found guilty of:

involuntary manslaughter pursuant to RSMo. Section 565.024.1

assault in the second degree pursuant to RSMo. Section 565.060.1

assault of a law enforcement officer in the second degree pursuant to RSMo. Section 565.081.1(3)

or

driving under the influence of alcohol or drugs in violation of state law or a county or municipal ordinance, where the judge in such case was an attorney and the Defendant was represented by or waived the right to an attorney in writing.

No Suspended Imposition of Sentence (SIS) is authorized and the Defendant, if a plea of guilty is entered or there is a finding of guilt, will be convicted of a felony. RSMo. Section 577.023(4).

If the Defendant is tried by a jury, the sentencing is by the Court, and NOT by the jury. RSMo. Section 577.023 (13).

At a jury trial, the facts of the Defendant's alleged persistent offender status shall be pleaded, established and found outside the jury's presence and prior to submission to the jury. RSMo. 577.023(6); State v. Cullen, 39 S.W.3d 899 (Mo.App. E.D. 2001)

No persistent offender shall be eligible for parole or probation until he has served a minimum of 10 days imprisonment, unless as a condition of such parole or probation such person performs at least 60 days of community service under the supervision of the court. RSMo. Section 577.023(4)

Suspended Imposition of Sentences (SISs) count, are treated the same as convictions and may be plead as intoxication-related traffic offenses to establish persistent offender status. RSMo. Section 577.023(14).

Assault Second Degree-- RSMo. Section 565.060(4)

A person commits the crime of Assault in the Second Degree if he, while in an intoxicated condition or under the influence of controlled substances or drugs, operates a motor vehicle while in this state, and, when so operating, acts with criminal negligence to cause physical injury to any other person than himself.

The term "criminal negligence" means failure to be aware of a substantial and unjustifiable risk that circumstances exist or a result will follow, and such failure constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation. RSMo. Section 556.061(6) & 562.016.

The term "physical injury" means physical pain, illness, or any impairment of physical condition. MAI-CR 3d 333.00.

If convicted, the court may, at it's discretion, Suspend Imposition of Sentence (SIS).

Unless Defendant is a prior or persistent criminal offender, the jury imposes the sentence, NOT the court.

Typical defenses to the felony charge of Assault Second Degree are:

Defendant was not the operator of the vehicle

Defendant was not intoxicated or under the influence at the time of the driving or the operation

Defendant did not operate the motor vehicle with criminal negligence-- some explanation as to how the accident occurred which leads the jury to conclude the driver was not negligent.

The person allegedly injured did not suffer a "physical injury."

This offense is a Class C felony.

There is a separate crime if the injured party is a law enforcement officer. RSMo. Section 565.082 (Class B felony).

Involuntary Manslaughter-- RSMo. Section 565.024 A person commits the crime of involuntary manslaughter, if he, while in an intoxicated condition, operates a motor vehicle in this state, and, when so operating, acts with criminal negligence to cause the death of any person.

"criminal negligence" is defined the same as in the vehicular assault context above. RSMo. Section 556.061(6).

If convicted, the court, in it's discretion, may Suspend the Imposition of Sentence (SIS).

Unless Defendant is a prior or persistent criminal offender, the jury imposes the sentence, not the court.

Typical defenses to felony charge of Involuntary Manslaughter are:

Defendant was not the driver or operator of the vehicle

Defendant was not intoxicated or under the influence at the time of the driving or operation

Defendant did not operate the motor vehicle with criminal negligence

Some other intervening factor(s) caused the death of the other person such as medical malpractice in the treatment of the person's injuries

This offense is a Class C felony

Murder Second Degree-- RSMo. Section 565.021

A person commits the crime of Murder in the Second Degree if he commits or attempts to commit any felony, and, in the perpetration or the attempted perpetration of such felony or in the flight from the perpetration or attempted perpetration of such felony, another person is killed as a result of the perpetration or attempted perpetration of such felony or immediate flight from the perpetration of such felony or attempted perpetration of such felony.

This "felony murder" prosecution may be brought against a driver who has an accident where a death occurs and the driver is committing a felony offense such as the felony offense of DWI-Persistent Offender, the felony offense of Driving While Revoked-Persistent Offender, Felony Resisting Arrest By Flight, or Felony Leaving The Scene of an Accident.

This type of prosecution ups the ante considerably for the Defendant as this charge is a Class A felony, carrying a penalty range of 10-30 years or life. RSMo. Section 558.019

Since Murder in the Second is a dangerous felony as defined in RSMo. Section 556.061, the Defendant must serve 85% of any sentence he receives, if committed to the Department of Corrections.

See State v. Pembleton, 978 S.W.2d 352 (Mo.App. E.D. 1998) for an excellent discussion of this topic.

Leaving the Scene of a Motor Vehicle Accident-- RSMo. Section 577.060

A person commits the crime of Leaving the Scene of a Motor Vehicle Accident when being the operator or driver of a vehicle in the highway or on any publicly or privately owned parking lot or parking facility generally open for use by the public and knowing that an injury has been caused to a person or damage has been caused to property, due to his culpability or to accident

he leaves the place of the injury, damage or accident without stopping and giving his name, residence, including city and street number, motor vehicle number and driver's license number, if any, to the injured party or to a police officer, or if no police officer is in the vicinity, then to the nearest police station or judicial officer.

This crime becomes a Class D felony if the accident resulted in physical injury to another party, or property damage in excess of one thousand dollars, or if the Defendant has previously pled guilty to or been found guilty of a violation of this section. Otherwise, it's a Class A Misdemeanor.

Felony Driving While Revoked or Suspended-- RSMo. Section 302.321

A person commits the crime of driving while revoked if he operates a motor vehicle on a highway when his license or driving privilege has been cancelled, suspended or revoked under the laws of this state or any other state, and acts with criminal negligence with respect to knowledge of the fact that his driving privilege has been cancelled, suspended or revoked. This crime is usually a Class A Misdemeanor, but becomes a Class D felony under the following circumstances:

Any person with no prior alcohol-related enforcement contacts as defined in RSMo. Section 302.525, convicted of a fourth or subsequent time of driving while revoked or of a county or municipal ordinance of driving while revoked or suspended where the judge in such case was an attorney and the Defendant was represented by or waived the right to an attorney in writing, and where the prior three driving while revoked offenses occurred within 10 ten years of the date of the occurrence of the present offense and where the person received and served a sentence of ten days or more on such previous offenses

Any person with a prior alcohol-related enforcement contact as defined in RSMo. Section 302.525 convicted of a third or subsequent time of driving while revoked or of a county or municipal ordinance if driving while suspended or revoked where the judge in such case was an attorney and Defendant was represented by or waived the right to an attorney in writing, and where the prior two driving while revoked offenses occurred within ten years of the date of the occurrence of the present offense and where the person received and served a sentence of ten days or more on such previous offenses.

Driving while revoked is a Class D felony on the second or subsequent conviction pursuant to RSMo. Section 577.010, or on a fourth or subsequent conviction for any other offense

No court shall suspend the imposition of sentence as to such a person nor sentence such a person to pay a fine in lieu of a term of imprisonment, nor shall such person be eligible for parole or probation until he has served a minimum of forty eight consecutive hours of imprisonment, unless as a condition of such parole or probation, such person performs at least ten days involving at least forty hours of community service under the supervision of the court in those jurisdictions which have a recognized program for community service.

Felony Operation of a Motor Vehicle without Proper License-- RSMo. Section 302.020

It shall be unlawful for any person, except those expressly exempted by RSMo. Section 302.080, to operate any vehicle upon any highway in this state unless the person has a valid license. RSMo. Section 302.020(1)

Any person convicted of a third or subsequent time of violating RSMo. 302.020(3) is guilty of a Class D felony.

State v. Louis, #ED80357 (Mo. App. 4/8/03)

NOTE: SISs do not count, need convictions to enhance.

Missouri DUI / DWI / BAC DRUNK DRIVING DEFENSE

FURTHER INFORMATION:

J. Matthew Guilfoil, The Guilfoil Law Group, L.L.C. 1656 Washington, Suite 220 Kansas City, Missouri 64108 (816) 842-3717 phone, 1-877-DWI-MATT Toll Free Number; Email: info@guilfoillawgroup.com.

Practice in the following Regions, Cities, and Counties in Missouri.

KANSAS CITY METROPOLITAN AREA

Cass County. Archie, Austin, Belton, Cleveland, East Lynne, Freeman, Garden City, Harrisonville, Lake Annette, Latour, Peculiar, Pleasant Hill, Raymore, Strasburg, West Line, 64012, 64078, 64080, 64083, 64090, 64701, 64725, 64734, 64743, 64746, 64747.

Clay County. Avondale, Birmingham, Claycomo, Crystal Lakes, Excelsior Estates, Excelsior Springs, Gladstone, Holt, Homestead Village, Kansas City, Kearney, Liberty, Mosby, North Kansas City, Pleasant Valley, Randolph, Smithville, Wood Heights. 64024, 64048, 64060, 64068, 64069, 64072, 64073, 64089, 64116, 64117, 64118, 64119, 64155, 64156, 64157, 64158, 64160, 64161, 64165, 64166, 64167.

Jackson County. Blues Springs, Buckner, Grain Valley, Grandview, Greenwood, Independence, Kansas City, Lake Lotawana, Lake Tapawingo, Lake Winnebago, Lee's Summit, Levasy, Lone Jack, Oak Grove, Raytown, Sibley, Sugar Creek. 64013, 64014, 64015, 64016, 64029, 64030, 64034, 64050, 64051, 64052, 64053, 64054, 64055, 64056, 64057, 64058, 64063, 64064, 64066, 64070, 64075, 64081, 64082, 64086, 64088, 64101, 64102, 64103, 64105, 64106, 64108, 64109, 64110, 64111, 64112, 64113, 64114, 64120, 64121, 64123, 64124, 64125, 64126, 64127, 64128, 64129, 64130, 64131, 64132, 64133, 64134, 64136, 64137, 64138, 64139, 64141, 64142, 64145, 64146, 64157, 64148, 64149, 64179, 64188, 64191, 64192, 64196, 64199, 64171, 64172.

Platte County. Camden Point, Dearborn, Farley, Edgerton, Ferrelview, Houston Lake, Kansas City, Lake Waukomis, Parkville, Platte City, Platte Woods, Riverside, Waldron, Weatherby Lake, Weston. 64018, 64028, 64079, 64092, 64098, 64108, 64150, 64151, 64152, 64153, 64154, 64163, 64164, 64168, 64190, 64195, 64439, 64444.

Ray County. Camden, Hardin, Henrietta, Elmira, Lawson, Orrick, Rayville, Richmond. 64017, 64035, 64036, 64062, 64077, 64084, 64085.

Other Areas of Service in Missouri

Andrew County. Rea, Rosendale, Savannah. 64480, 64483, 64485.

Bates County. Adrian, Amoret, Amsterdam, Butler, Drexel, Foster, Hume, Stotesbury, Passaic, Rich Hill, Rockville. 64720, 64722, 64723, 64730, 64742, 64745, 64752, 64777, 64779, 64780.

Boone County. Ashland, Centralia, Columbia, Hallsville, Harrisburg, Hartsburg, McBaine, Rocheport, Sturgeon. 65010, 65039, 65201, 65202, 65203, 65205, 65240, 65255, 65256, 65279, 65284.

Buchanan County. Agency, De Kalb, Easton, Faucett, Rushville, St. Joseph. 64400, 64401, 64443, 64448, 64484, 64501, 64502, 64503, 64504, 64505, 64506, 64507, 64508.

Caldwell County. Braymer, Breckenridge, Cowgill, Hamilton, Kidder, Kingston. 64624, 64625, 64637, 64644, 64649, 64650.

Carroll County. Bogard, Bosworth, Carrollton, De Witt, Hale, Norborne, Stet, Tina, Wakenda. 64622, 64623, 64633, 64639, 64643, 64668, 64680, 64682, 64687.

Chariton County. Mendon, Rothville, Sumner. 64660, 64676, 64681.

Clinton County. Cameron, Gower, Lathrop, Plattsburg, Trimble, Turney. 64429, 64454, 64465, 64477, 64492, 64493.

Cooper County. Blackwater, Boonville, Bunceton, Otterville, Pilot Grove, Prairie Home, Wooldridge. 65068, 65233, 65237.

Daviess County. Altamount, Coffey, Gallatin, Jameson, Jamesport, Lock Springs, Pattonsburg, Winston. 64620, 64636, 64640, 64647, 64648, 64654, 64670, 64689.

De Kalb County. Amity, Clarksdale, Fairport, Hemple, Maysville, Osborn, Stewartsville, Union Star, Weatherby. 64422, 64430, 64447, 64469, 64474, 64490, 64494, 64497.

Gentry County. Albany, Darlington, Gentry, King City, McFall, Stanberry. 64402, 64438, 64453, 64463, 64489, 64657.

Grundy County. Galt, Laredo, Spickard, Trenton. 64641, 64652, 64679, 64683.

Harrison County. Bethany, Blythedale, Brimson, Cainsville, Eagleville, Gilman City, Hatfield, Martinsville, Mount Moriah, New Hampton, Ridgeway. 64424, 64426, 64442, 64458, 64467, 64471, 64481, 64632, 64642.

Henry County. Blairstown, Calhoun, Clinton, Creighton, Deepwater, Montrose, Tightwad, Urich, Windsor. 64726, 64735, 64739, 64740, 64770, 64788, 65323, 65360.

Holt County. Bigelow, Corning, Craig, Fortescue. 64437.

Howard County. Armstrong, Fayette, Franklin, Glasgow, New Franklin. 65230, 65248, 65250, 65254, 65274.

Johnson County. Centerview, Holden, Warrensburg, Chilhowee, Kingsville, Leeton, Whiteman Air Force Base, Knob Noster. 64019, 64040, 64061, 64093, 64733, 64761, 65305, 65336.

Lafayette County. Alma, Bates City, Concordia, Corder, Dover, Higginsville, Lexington, Mayview, Napoleon, Odessa, Waverly, Wellington. 64001, 64011, 64020, 64021, 64022, 64037, 64067, 64071, 64074, 64076, 64096, 64097.

Linn County. Brookfield, Browning, Buckin, Laclede, Linneus, Marceline, Meadville, New Boston, Purdin, St. Catherine. 63557, 64628, 64630, 64631, 64653, 64658, 64659, 64674.

Livingston County. Avalon, Chillicothe, Chula, Dawn, Ludlow, Mooresville, Utica, Wheeling. 64601, 64635, 64638, 64656, 64664, 64686, 64688. Macon County. Anabel, Atlanta, Bevier, Callao, Elmer, Ethel, Excello, La Plata, Macon, New Cambria. 63431, 63530, 63532, 63534, 63538, 63539, 63549, 63552, 63558, 65247.

Mercer County. Mercer, Princeton. 64661, 64673.

Pettis County. Green Ridge, Houstonia, Hughesville, La Monte, Mora, Sedalia, Smithton. 65301, 65302, 65332, 65333, 65334, 65337, 65345, 65350.

Putnam County. Livonia, Lucerne, Powersville, Unionville, Worthington. 63551, 63565, 63567, 64655, 64672.

Saline County. Arrow Rock, Blackburn, Gilliam, Grand Pass, Malta Bend, Marshall, Napton, Miami, Nelson, Slater, Sweet Springs. 65320, 65321, 65330, 65339, 65340, 65344, 65347, 65349, 65351.

Sullivan County. Green Castle, Green City, Harris, Humphreys, Milan, Newton, Pollock, Winigan. 63544, 63545, 63556, 63560, 63566, 64645, 64646, 64667.

Worth County. Allendale, Denver, Grant City, Sheridan, Worth.

Websites:

http://Missouri-dui-dwi-defense.com;

http://www.drunkdrivingdefense.com (Missouri Affiliate);

http://www.dui-dwi.com (Missouri Affiliate);

http://www.guilfoillawgroup.com.

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