The Firm

Breath Test Refusal

Consequences for Refusing the Breath, Blood, or Urine Test

After you have been arrested, the officer is required to advise you of the Implied Consent Warnings. Those include the following:

  1. You are under arrest for DWI;
  2. The reason for requesting the test;
  3. Your refusal to take a test may be used against you in a criminal prosecution;
  4. Your license will be immediately revoked for one year if you refuse.

In some cases, if your breath test result comes back under the legal limit, or if there is a malfunction with the breath testing instrument, the officer may ask you to submit to a urine or blood test, or a test on a different breath test instrument. In such circumstances, you are required to take a second test if requested to do so. The officer can also ask for a second test even when there is no problem with the first test. You do not get to choose the type of test or tests you take.. the officer gets to make that decision.

If you refuse the test, the officer will serve you with a Notice of Refusal. You then have 30 days from the date of your arrest to file a Petition for Review in the Circuit Court of the county of your arrest, although the revocation will go into effect in 15 days unless your petition has been filed and the court has issued a “Stay Order” before then. While the Circuit Court can and normally will grant a stay order pending a hearing before a traffic court commissioner or judge in a refusal case, some courts may want to consider your driving history, whether you were involved in an accident, and/or if you have automobile liability insurance.  In any case, it is important to get your petition filed with the court as soon as possible so that you are able to drive pending your hearing.

If the judge rules against you, your driver’s license will be revoked for a period of one (1) year. You may be eligible to obtain an immediate Limited Driving Privilege (“LDP”), depending on your driving history and your compliance the LDP requirements.

Issues at Your Refusal Hearing

There are three primary issues at your refusal hearing.  First, the judge must determine whether or not the officer had reasonable grounds (i.e., “probable cause) to believe you were driving while intoxicated. Second, were you arrested?  Finally, did you refuse to submit to a chemical test of your breath, blood, or urine?  If the judge determines any of these issues in your favor, the Department of Revenue will be ordered to remove the refusal revocation from your driving record and return your driver’s license.

In some cases, an agreement regarding the breath test refusal might be reached as part of a plea bargain of the criminal DWI charges.

There may also be a number of secondary issues involved in your case.  For example, if you requested to speak to an attorney and were not granted 20 minutes to do so before having to decide whether to take a test, the court may find that you did not “refuse” the test within the meaning of the law. Similarly, if you weren’t read your Implied Consent Warnings, this would negate any refusal.

Missouri Breath Test Refusal Defense Attorneys

A conviction for a DWI has serious consequences. To avoid or reduce the consequences, it is important to retain the legal services of the most experienced, knowledgeable DWI defense attorney. The Law Office of Carl M. Ward represents clients throughout the State of Missouri, and have handled DWI cases in nearly (90) Missouri counties.

Call our toll free number at  (877)-384-9255 or use the online contact form on this website to schedule a free initial consultation. We will review the facts of your case and provide you with an honest assessment of what you might expect in terms of a possible outcome.