Tag Archives: missouri ticket lawyer

Court says: No Hearing, No Denial of Probation

January 22, 2019

The Missouri appellate court in the Western District issued an opinion stating that a circuit court has authority after sentencing only as provided by statute. In this case, it said that to deny statutes governing a 120-day shock incarceration program by not listening to the Department of Corrections’ recommendation for probation, the circuit court must first hold a hearing within a certain time period. If the circuit court fails to do so, the defendant must be released on probation.

This case is about a defendant who was convicted of felony driving while intoxicated in the Circuit Court of Livingston County.  The defendant was sentenced to four years’ imprisonment. He was ordered to participate in a 120-day institutional treatment program pursuant to § 559.115.3. When the court recommends and receives placement of an offender in a department of corrections 120-day program, the offender shall be released on probation if the Department of Corrections determines that the offender has successfully completed the program.

However, when the Department of Corrections reported to the circuit court that the defendant would successfully complete the 120-day program and recommended release on probation, the court denied him release without a hearing

The defendant filed a Petition for Writ of Mandamus in the appellate court, contending that the circuit court lacked authority to deny him probation, since it failed to hold a hearing on the matter within 120 days of defendant’s delivery to the Department of Corrections. Even if the 120 day deadline coincides with date of completion of the program there still needs to be a hearing. “An offender cannot be stripped of his right to a hearing on his probation determination simply because he completed the program within the time limits but on the last day of such time limits.”

The appellate court issued a writ in Mandamus, holding that (1) The circuit court lacked authority to deny the defendant probation without first holding a hearing on the matter. And,

(2) Because the court failed to hold a hearing on the matter within 120 days of defendant’s

delivery to the Department of Corrections, the court has exhausted its authority.

So a permanent writ in mandamus was issued directing the circuit court to rescind its order denying the defendant release on probation, and to enter an order releasing him on probation on appropriate conditions.

MO Supreme Court hears case challenging DWI conviction

December 17, 2018

An interesting case was just heard before the Missouri Supreme Court that challenges a defendant’s drunk driving conviction.

The defendant’s attorneys argued before the seven judge panel that his breathalyzer results should not be admitted and that certain notices send out when a driver’s license is suspended are actually a violation of due process.

The defendant was arrested for suspicion of driving while intoxicated.  While at the police station, an officer asked him to submit to a breath test. The defendant initially declined.  Then he was told his license would be automatically revoked for one year for refusing the test. He also spoke to his attorney.  He then consented to the test, which showed his blood alcohol content was 0.087, which exceeded the legal limit. The officer gave him a notice of suspension and took his driving license.

The defendant asked for an administrative hearing, which ended up upholding his suspension.

His argument against the admissibility of the breath test and his claim of being denied due process was then rejected by the circuit court in Franklin County in March 2018.

The defendant argues that his breath test should be inadmissible for these reasons:

1) The police failed to file a report on a maintenance check of the breath analyzer used in his breath test with the Department of Health and Senior Services within 15 days as required.

2) Missouri’s Implied Consent Warning issued to him by an officer before the breath test is a violation of due process because it specified consequences if he declined to take the test but failed to inform him of the consequences if he submitted to it.

Few people but for law enforcement and lawyers know that drivers who decline the test have their licenses immediately revoked for a year.  However, few, if any, drivers understand the consequences of a refusal if the driver does not understand the consequences of submitting to the test.

3) And, that he was misled when the officer issued him a Notice of because it only states that the driving privilege is being suspended due to an arrest on probable cause for driving while intoxicated.  The defendant says the notice fails to inform about the other requirements for a suspension that include that the driver actually had a blood alcohol content of greater than 0.08 and was actually driving.

It will be interesting to see if these arguments can stick, and get the defendant’s conviction reversed and the case sent back to the trial court. We should know soon when the Supreme court rules.  Keep it posted here and we will let you know how it turns out. fffffffffffffff

Missouri’s license suspension process can be confusing

January 15, 2018

In a previous blog, we discussed how accumulating too many points within a short period of time can lead to a suspension of your driving privileges.

We talked about how every year you drive without getting new points on your record, the points will be reduced. For example, 1 year — total remaining points reduced by one-third; 2 years — remaining points reduced by one-half; and 3 years — points reduced to zero. Please note that although your points may be reduced to zero, certain types of convictions must remain listed permanently on your Missouri driver record.

During the point suspension process and after, you may have a few questions. The Department of Revenue offers information on its website that answer some of those questions.

Why is my driving privilege suspended, revoked, or denied?

There are a number of reasons why your driver license may be suspended, revoked, or denied. You can find out why you are suspended, revoked, or denied from the letter(s) you received or by contacting the Department of Revenue.

Can I check my driver record?
Yes. Call (573) 526-2407 to find out about non-personal information such as traffic tickets and suspension/revocation-related information. You may also get a copy of your driver record.

How can I get my driving privilege reinstated?
Your specific reinstatement requirements are based on the type of suspension, revocation, or denial action(s) on your driver record. For more information, visit the License Reinstatement Requirements page of the DOR website. You can also contact the DOR staff by e-mail to find out what your reinstatement requirements are.

Am I eligible for a Restricted Driving Privilege (RDP)?
The Department only issues Restricted Driving Privileges (RDP) for first-time alcohol point suspensions. For information about the RDP, visit the Restricted Driving Privilege (RDP) page of the DOR website

Am I eligible for a Limited Driving Privilege (LDP)?
If you cannot get your driver license back, but you need to drive for employment or other important matters, you may apply for a Limited Driving Privilege (LDP). You may get an LDP unless you have certain convictions or losses of license on your driver record. Some convictions or loss of license are so serious that an LDP may not be granted. Visit the Limited Driving Privilege (LDP) page of the DOR website for reasons why you may not be eligible for an LDP. Please note: A person cannot obtain an LDP to drive a commercial motor vehicle.

Where and how do I apply for a Limited Driving Privilege (LDP)?
For information about the Limited Driving Privilege (LDP), visit the Limited Driving Privilege (LDP) page of the DOR website. In some situations, you may have to petition the Court in the County in which you live.

Where do I appeal the suspension, revocation, or denial of my driver license?
You may appeal a driver license suspension, revocation, or denial in the circuit court of the county where you live within 30 days after the notice of suspension, revocation, or denial is issued.

Visit the Department of Revenue website for more information: