The Jefferson City News Tribune published an article yesterday indicating that the Miller County Prosecutor’s Office is implementing a new policy known as a “no refusal” policy for people arrested for driving while intoxicated (“DWI”). The idea for the policy is to assist law enforcement officers to obtain search warrants for blood samples to determine the level of alcohol in a person’s system where the person has refused to submit to a breath test. Missouri law currently permits law enforcement officers to obtain a search warrant for a blood sample. But, there is no state-wide “no refusal” policy such that the prosecutor is implementing. In certain instances, the prosecutor’s policy might actually help drivers arrested for DWI and the criminal lawyers that represent them. In the case of McKay v. Director of Revenue, 382 S.W.3d 119 (Mo.App. W.D. 2012), the court of appeals disagreed with the trial court’s decision to revoke a driver’s driving privileges where the driver initially refused the breath test, but agreed to take a blood test. The court of appeals concluded that where an officer elects to administer a blood test where the driver initially refused a breath test, that the purpose of Missouri’s Implied Consent Law has been fulfilled. The court concluded that The Director of Revenue may not then revoke a driver’s license for failure to submit to the test. The “no refusal” policy by the Miller County Prosecutor’s Office may help criminal lawyers and benefit first time DWI offenders who refuse to take a breath test.
Scott Hamblin, shareholder at Brydon Swearengen & England P.C.