When an officer informs a DWI suspect that he will “immediately” lose his license if he does not submit to a breath test, even though technically he may have several days before his license is revoked, that technicality is not misleading and is not violating the Defendant’s due process rights.

A recent case from the Eastern District of Missouri Court of Appeals overturned a lower court that had held in favor of the DWI Defendant.  The appellate court held that the trial court erred in concluding that the Defendant’s breath test result was obtained in violation of his due process rights because the warning that Defendant’s license would be “immediately” revoked, which is required by Section 577.041.1, did not mislead Mr. Thomas as to the consequences of refusing to submit to a breath test.   The appellate court reversed and remanded the case.

 The Director of Revenue (“Director”) had appealed the judgment of the trial court reinstating the driving privileges of the Defendant. The Director argued the trial court erred in finding Mr. Thomas’ breath test results were inadmissible because they were obtained in violation of Section 577.037 RSMo 2000 (Cum. Supp. 2007) and also in violation of the Defendant’s due process rights.

The Director had argued that the warning could not be unconstitutional because “[t]he Missouri General Assembly mandated by statute the particular language an officer is required to use when requesting that a driver submit to a test to determine his blood alcohol content” including the language that “the person’s license shall be immediately revoked upon refusal to take the test.” (emphasis in original).

The Defendant argued that his  “test results were obtained in violation of his due process rights because the officer informed him his license would be “immediately” revoked if he failed to submit to the test. Defendant reasoned that this statement was “blatantly incorrect information” because, under the statute, he would receive a fifteen-day driving permit prior to the date of revocation. The “untrue” and “coercive” warning, he argued, invalidated his consent by prejudicing his ability to make an informed decision.”

The case was Thomas v. Director of Revenue,  No. ED106360-01. The opinion was written by Judge Angela T. Quigless, with judges Roy L. Richter and Robert M. Clayton III  concurring.  Attorneys for Appellant were Morgan L. Brewington and Zachary M. Bluestone, while attorney for Respondent were Michael Carter and Shelly A. Cronin.