577.041. Refusal to submit to chemical test--notice, report of peace officer, contents--revocation of license, hearing--evidence, admissibility--reinstatement of licenses--substance abuse traffic offe
Refusal to submit to chemical test--notice, report of peace officer,contents--revocation of license, hearing--evidence,admissibility--reinstatement of licenses--substance abuse trafficoffender program--assignment recommendations, judicialreview--fees.
577.041. 1. If a person under arrest, or who has been stoppedpursuant to subdivision (2) or (3) of subsection 1 of section 577.020,refuses upon the request of the officer to submit to any test allowedpursuant to section 577.020, then none shall be given and evidence of therefusal shall be admissible in a proceeding pursuant to section 565.024,565.060, or 565.082, RSMo, or section 577.010 or 577.012. The request ofthe officer shall include the reasons of the officer for requesting theperson to submit to a test and also shall inform the person that evidenceof refusal to take the test may be used against such person and that theperson's license shall be immediately revoked upon refusal to take thetest. If a person when requested to submit to any test allowed pursuant tosection 577.020 requests to speak to an attorney, the person shall begranted twenty minutes in which to attempt to contact an attorney. If uponthe completion of the twenty-minute period the person continues to refuseto submit to any test, it shall be deemed a refusal. In this event, theofficer shall, on behalf of the director of revenue, serve the notice oflicense revocation personally upon the person and shall take possession ofany license to operate a motor vehicle issued by this state which is heldby that person. The officer shall issue a temporary permit, on behalf ofthe director of revenue, which is valid for fifteen days and shall alsogive the person a notice of such person's right to file a petition forreview to contest the license revocation.
2. The officer shall make a certified report under penalties ofperjury for making a false statement to a public official. The reportshall be forwarded to the director of revenue and shall include thefollowing:
(1) That the officer has:
(a) Reasonable grounds to believe that the arrested person wasdriving a motor vehicle while in an intoxicated or drugged condition; or
(b) Reasonable grounds to believe that the person stopped, beingunder the age of twenty-one years, was driving a motor vehicle with a bloodalcohol content of two-hundredths of one percent or more by weight; or
(c) Reasonable grounds to believe that the person stopped, beingunder the age of twenty-one years, was committing a violation of thetraffic laws of the state, or political subdivision of the state, and suchofficer has reasonable grounds to believe, after making such stop, that theperson had a blood alcohol content of two-hundredths of one percent orgreater;
(2) That the person refused to submit to a chemical test;
(3) Whether the officer secured the license to operate a motorvehicle of the person;
(4) Whether the officer issued a fifteen-day temporary permit;
(5) Copies of the notice of revocation, the fifteen-day temporarypermit and the notice of the right to file a petition for review, whichnotices and permit may be combined in one document; and
(6) Any license to operate a motor vehicle which the officer hastaken into possession.
3. Upon receipt of the officer's report, the director shall revokethe license of the person refusing to take the test for a period of oneyear; or if the person is a nonresident, such person's operating permit orprivilege shall be revoked for one year; or if the person is a residentwithout a license or permit to operate a motor vehicle in this state, anorder shall be issued denying the person the issuance of a license orpermit for a period of one year.
4. If a person's license has been revoked because of the person'srefusal to submit to a chemical test, such person may petition for ahearing before a circuit or associate circuit court in the county in whichthe arrest or stop occurred. The person may request such court to issue anorder staying the revocation until such time as the petition for review canbe heard. If the court, in its discretion, grants such stay, it shallenter the order upon a form prescribed by the director of revenue and shallsend a copy of such order to the director. Such order shall serve as proofof the privilege to operate a motor vehicle in this state and the directorshall maintain possession of the person's license to operate a motorvehicle until termination of any revocation pursuant to this section. Uponthe person's request the clerk of the court shall notify the prosecutingattorney of the county and the prosecutor shall appear at the hearing onbehalf of the director of revenue. At the hearing the court shalldetermine only:
(1) Whether or not the person was arrested or stopped;
(2) Whether or not the officer had:
(a) Reasonable grounds to believe that the person was driving a motorvehicle while in an intoxicated or drugged condition; or
(b) Reasonable grounds to believe that the person stopped, beingunder the age of twenty-one years, was driving a motor vehicle with a bloodalcohol content of two-hundredths of one percent or more by weight; or
(c) Reasonable grounds to believe that the person stopped, beingunder the age of twenty-one years, was committing a violation of thetraffic laws of the state, or political subdivision of the state, and suchofficer had reasonable grounds to believe, after making such stop, that theperson had a blood alcohol content of two-hundredths of one percent orgreater; and
(3) Whether or not the person refused to submit to the test.
5. If the court determines any issue not to be in the affirmative,the court shall order the director to reinstate the license or permit todrive.
6. Requests for review as provided in this section shall go to thehead of the docket of the court wherein filed.
7. No person who has had a license to operate a motor vehiclesuspended or revoked pursuant to the provisions of this section shall havethat license reinstated until such person has participated in andsuccessfully completed a substance abuse traffic offender program definedin section 577.001, or a program determined to be comparable by thedepartment of mental health or the court. Assignment recommendations,based upon the needs assessment as described in subdivision (22) of section302.010, RSMo, shall be delivered in writing to the person with writtennotice that the person is entitled to have such assignment recommendationsreviewed by the court if the person objects to the recommendations. Theperson may file a motion in the associate division of the circuit court ofthe county in which such assignment was given, on a printed form providedby the state courts administrator, to have the court hear and determinesuch motion pursuant to the provisions of chapter 517, RSMo. The motionshall name the person or entity making the needs assessment as therespondent and a copy of the motion shall be served upon the respondent inany manner allowed by law. Upon hearing the motion, the court may modifyor waive any assignment recommendation that the court determines to beunwarranted based upon a review of the needs assessment, the person'sdriving record, the circumstances surrounding the offense, and thelikelihood of the person committing a like offense in the future, exceptthat the court may modify but may not waive the assignment to an educationor rehabilitation program of a person determined to be a prior orpersistent offender as defined in section 577.023, or of a persondetermined to have operated a motor vehicle with fifteen-hundredths of onepercent or more by weight in such person's blood. Compliance with thecourt determination of the motion shall satisfy the provisions of thissection for the purpose of reinstating such person's license to operate amotor vehicle. The respondent's personal appearance at any hearingconducted pursuant to this subsection shall not be necessary unlessdirected by the court.
8. The fees for the substance abuse traffic offender program, or aportion thereof to be determined by the division of alcohol and drug abuseof the department of mental health, shall be paid by the person enrolled inthe program. Any person who is enrolled in the program shall pay, inaddition to any fee charged for the program, a supplemental fee to bedetermined by the department of mental health for the purposes of fundingthe substance abuse traffic offender program defined in section 302.010,RSMo, and section 577.001. The administrator of the program shall remit tothe division of alcohol and drug abuse of the department of mental healthon or before the fifteenth day of each month the supplemental fee for allpersons enrolled in the program, less two percent for administrative costs.Interest shall be charged on any unpaid balance of the supplemental feesdue the division of alcohol and drug abuse pursuant to this section andshall accrue at a rate not to exceed the annual rates established pursuantto the provisions of section 32.065, RSMo, plus three percentage points.The supplemental fees and any interest received by the department of mentalhealth pursuant to this section shall be deposited in the mental healthearnings fund which is created in section 630.053, RSMo.
9. Any administrator who fails to remit to the division of alcoholand drug abuse of the department of mental health the supplemental fees andinterest for all persons enrolled in the program pursuant to this sectionshall be subject to a penalty equal to the amount of interest accrued onthe supplemental fees due the division pursuant to this section. If thesupplemental fees, interest, and penalties are not remitted to the divisionof alcohol and drug abuse of the department of mental health within sixmonths of the due date, the attorney general of the state of Missouri shallinitiate appropriate action of the collection of said fees and interestaccrued. The court shall assess attorney fees and court costs against anydelinquent program.
10. Any person who has had a license to operate a motor vehiclerevoked more than once for violation of the provisions of this sectionshall be required to file proof with the director of revenue that any motorvehicle operated by the person is equipped with a functioning, certifiedignition interlock device as a required condition of license reinstatement.Such ignition interlock device shall further be required to be maintainedon all motor vehicles operated by the person for a period of not less thansix months immediately following the date of reinstatement. If the personfails to maintain such proof with the director as required by this section,the license shall be rerevoked and the person shall be guilty of a class Amisdemeanor.
11. The revocation period of any person whose license and drivingprivilege has been revoked under this section and who has filed proof offinancial responsibility with the department of revenue in accordance withchapter 303, RSMo, and is otherwise eligible, shall be terminated by anotice from the director of revenue after one year from the effective dateof the revocation. Unless proof of financial responsibility is filed withthe department of revenue, the revocation shall remain in effect for aperiod of two years from its effective date. If the person fails tomaintain proof of financial responsibility in accordance with chapter 303,RSMo, the person's license and driving privilege shall be rerevoked and theperson shall be guilty of a class A misdemeanor.
(L. 1982 S.B. 513, A.L. 1987 S.B. 230, A.L. 1991 S.B. 125 & 341, A.L. 1993 S.B. 167 merged with S.B. 180, A.L. 1996 H.B. 1169 & 1271 merged with S.B. 722, A.L. 1998 S.B. 634, A.L. 2001 H.B. 302 & 38, A.L. 2002 H.B. 2062, A.L. 2003 H.B. 600, A.L. 2005 H.B. 353 merged with H.B. 487, A.L. 2008 S.B. 930 & 947)Effective 7-01-09
(2000) Section specifically provides that venue for petition for review of driver's license revocation for refusal to submit to chemical test is in circuit court in county in which the arrest or stop occurred and thus applies versus the more general provisions of section 302.311. State ex rel. Director of Revenue v. Gaertner, 32 S.W.3d 564 (Mo.banc).
(2000) Time limit for contacting an attorney begins to run for arrestee upon being advised of requirements of implied consent law. Brown v. Director of Revenue, 34 S.W.3d 166 (Mo.App.W.D.).
(2002) At trial de novo following administrative revocation of driver's license under implied consent law, licensee may not contest revocation solely on grounds that he was not driving the motor vehicle. Hinnah v. Director of Revenue, 77 S.W.3d 616 (Mo.banc).
(2004) Clause "none shall be given" applies only to authority of law enforcement officers to proceed with a warrantless test and does not restrict a court's power to issue a search warrant to obtain blood sample. State v. Smith, 134 S.W.3d 35 (Mo.App.E.D.).
(2004) In driver's license revocation review by trial court, issue of authority of the director of revenue to revoke license in absence of arresting officer's sworn report is not before the court. Baker v. Director of Revenue, 151 S.W.3d 144 (Mo.App.S.D.).