577.023. Aggravated, chronic, persistent and prior offenders--enhanced penalties--imprisonment requirements, exceptions--procedures--definitions.
Aggravated, chronic, persistent and prior offenders--enhancedpenalties--imprisonment requirements,exceptions--procedures--definitions.
577.023. 1. For purposes of this section, unless the context clearlyindicates otherwise:
(1) An "aggravated offender" is a person who:
(a) Has pleaded guilty to or has been found guilty of three or moreintoxication-related traffic offenses; or
(b) Has pleaded guilty to or has been found guilty of one or moreintoxication-related traffic offense and, in addition, any of thefollowing: involuntary manslaughter under subdivision (2) or (3) ofsubsection 1 of section 565.024, RSMo; murder in the second degree undersection 565.021, RSMo, where the underlying felony is anintoxication-related traffic offense; or assault in the second degree undersubdivision (4) of subsection 1 of section 565.060, RSMo; or assault of alaw enforcement officer in the second degree under subdivision (4) ofsubsection 1 of section 565.082, RSMo;
(2) A "chronic offender" is:
(a) A person who has pleaded guilty to or has been found guilty offour or more intoxication-related traffic offenses; or
(b) A person who has pleaded guilty to or has been found guilty of,on two or more separate occasions, any combination of the following:involuntary manslaughter under subdivision (2) or (3) of subsection 1 ofsection 565.024, RSMo; murder in the second degree under section 565.021,RSMo, where the underlying felony is an intoxication-related trafficoffense; assault in the second degree under subdivision (4) of subsection 1of section 565.060, RSMo; or assault of a law enforcement officer in thesecond degree under subdivision (4) of subsection 1 of section 565.082,RSMo; or
(c) A person who has pleaded guilty to or has been found guilty oftwo or more intoxication-related traffic offenses and, in addition, any ofthe following: involuntary manslaughter under subdivision (2) or (3) ofsubsection 1 of section 565.024, RSMo; murder in the second degree undersection 565.021, RSMo, where the underlying felony is anintoxication-related traffic offense; assault in the second degree undersubdivision (4) of subsection 1 of section 565.060, RSMo; or assault of alaw enforcement officer in the second degree under subdivision (4) ofsubsection 1 of section 565.082, RSMo;
(3) "Continuous alcohol monitoring", automatically testing breath,blood, or transdermal alcohol concentration levels and tampering attemptsat least once every hour, regardless of the location of the person who isbeing monitored, and regularly transmitting the data. Continuous alcoholmonitoring shall be considered an electronic monitoring service undersubsection 3 of section 217.690, RSMo;
(4) An "intoxication-related traffic offense" is driving whileintoxicated, driving with excessive blood alcohol content, involuntarymanslaughter pursuant to subdivision (2) or (3) of subsection 1 of section565.024, RSMo, murder in the second degree under section 565.021, RSMo,where the underlying felony is an intoxication-related traffic offense,assault in the second degree pursuant to subdivision (4) of subsection 1 ofsection 565.060, RSMo, assault of a law enforcement officer in the seconddegree pursuant to subdivision (4) of subsection 1 of section 565.082,RSMo, or driving under the influence of alcohol or drugs in violation ofstate law or a county or municipal ordinance;
(5) A "persistent offender" is one of the following:
(a) A person who has pleaded guilty to or has been found guilty oftwo or more intoxication-related traffic offenses;
(b) A person who has pleaded guilty to or has been found guilty ofinvoluntary manslaughter pursuant to subdivision (2) or (3) of subsection 1of section 565.024, RSMo, assault in the second degree pursuant tosubdivision (4) of subsection 1 of section 565.060, RSMo, assault of a lawenforcement officer in the second degree pursuant to subdivision (4) ofsubsection 1 of section 565.082, RSMo; and
(6) A "prior offender" is a person who has pleaded guilty to or hasbeen found guilty of one intoxication-related traffic offense, where suchprior offense occurred within five years of the occurrence of theintoxication-related traffic offense for which the person is charged.
2. Any person who pleads guilty to or is found guilty of a violationof section 577.010 or 577.012 who is alleged and proved to be a prioroffender shall be guilty of a class A misdemeanor.
3. Any person who pleads guilty to or is found guilty of a violationof section 577.010 or 577.012 who is alleged and proved to be a persistentoffender shall be guilty of a class D felony.
4. Any person who pleads guilty to or is found guilty of a violationof section 577.010 or section 577.012 who is alleged and proved to be anaggravated offender shall be guilty of a class C felony.
5. Any person who pleads guilty to or is found guilty of a violationof section 577.010 or section 577.012 who is alleged and proved to be achronic offender shall be guilty of a class B felony.
6. No state, county, or municipal court shall suspend the impositionof sentence as to a prior offender, persistent offender, aggravatedoffender, or chronic offender under this section nor sentence such personto pay a fine in lieu of a term of imprisonment, section 557.011, RSMo, tothe contrary notwithstanding. No prior offender shall be eligible forparole or probation until he or she has served a minimum of five daysimprisonment, unless as a condition of such parole or probation such personperforms at least thirty days of community service under the supervision ofthe court in those jurisdictions which have a recognized program forcommunity service. No persistent offender shall be eligible for parole orprobation until he or she has served a minimum of ten days imprisonment,unless as a condition of such parole or probation such person performs atleast sixty days of community service under the supervision of the court.No aggravated offender shall be eligible for parole or probation until heor she has served a minimum of sixty days imprisonment. No chronicoffender shall be eligible for parole or probation until he or she hasserved a minimum of two years imprisonment. In addition to any other termsor conditions of probation, the court shall consider, as a condition ofprobation for any person who pleads guilty to or is found guilty of anintoxication-related traffic offense, requiring the offender to abstainfrom consuming or using alcohol or any products containing alcohol asdemonstrated by continuous alcohol monitoring or by verifiable breathalcohol testing performed a minimum of four times per day as scheduled bythe court for such duration as determined by the court, but not less thanninety days. The court may, in addition to imposing any other fine, costs,or assessments provided by law, require the offender to bear any costsassociated with continuous alcohol monitoring or verifiable breath alcoholtesting.
7. The state, county, or municipal court shall find the defendant tobe a prior offender, persistent offender, aggravated offender, or chronicoffender if:
(1) The indictment or information, original or amended, or theinformation in lieu of an indictment pleads all essential facts warrantinga finding that the defendant is a prior offender or persistent offender;and
(2) Evidence is introduced that establishes sufficient facts pleadedto warrant a finding beyond a reasonable doubt the defendant is a prioroffender, persistent offender, aggravated offender, or chronic offender;and
(3) The court makes findings of fact that warrant a finding beyond areasonable doubt by the court that the defendant is a prior offender,persistent offender, aggravated offender, or chronic offender.
8. In a jury trial, the facts shall be pleaded, established and foundprior to submission to the jury outside of its hearing.
9. In a trial without a jury or upon a plea of guilty, the court maydefer the proof in findings of such facts to a later time, but prior tosentencing.
10. The defendant shall be accorded full rights of confrontation andcross-examination, with the opportunity to present evidence, at suchhearings.
11. The defendant may waive proof of the facts alleged.
12. Nothing in this section shall prevent the use of presentenceinvestigations or commitments.
13. At the sentencing hearing both the state, county, or municipalityand the defendant shall be permitted to present additional informationbearing on the issue of sentence.
14. The pleas or findings of guilt shall be prior to the date ofcommission of the present offense.
15. The court shall not instruct the jury as to the range ofpunishment or allow the jury, upon a finding of guilt, to assess anddeclare the punishment as part of its verdict in cases of prior offenders,persistent offenders, aggravated offenders, or chronic offenders.
16. Evidence of a prior conviction, plea of guilty, or finding ofguilt in an intoxication-related traffic offense shall be heard anddetermined by the trial court out of the hearing of the jury prior to thesubmission of the case to the jury, and shall include but not be limited toevidence of convictions received by a search of the records of the Missouriuniform law enforcement system maintained by the Missouri state highwaypatrol. After hearing the evidence, the court shall enter its findingsthereon. A plea of guilty or a finding of guilt followed by incarceration,a fine, a suspended imposition of sentence, suspended execution ofsentence, probation or parole or any combination thereof in anyintoxication-related traffic offense in a state, county or municipal courtor any combination thereof, shall be treated as a prior plea of guilty orfinding of guilt for purposes of this section.
(L. 1982 S.B. 513, A.L. 1983 S.B. 318 & 135, A.L. 1991 S.B. 125 & 341, A.L. 1993 S.B. 167 merged with S.B. 180, A.L. 1998 S.B. 634, A.L. 2001 H.B. 302 & 38, A.L. 2005 H.B. 353 merged with H.B. 972 and S.B. 37, et al. merged with H.B. 353, A.L. 2005 1st Ex. Sess. H.B. 2, A.L. 2008 H.B. 1715, A.L. 2008 H.B. 1715 merged with S.B. 930 & 947 (Repealed L. 2009 H.B. 62), A.L. 2009 H.B. 62)Effective 7-09-09
(2005) Provision of section enhancing driving while intoxicated charge from misdemeanor to felony, by including prior DWI charges only from courts in which the judge was a lawyer, is constitutional under the Equal Protection and Due Process clauses. State v. Pike, 162 S.W.3d 464 (Mo.banc).