St. Louis criminal defense attorneys Chris Combs and Steve Waterkotte answer the most common questions about DWI/DUI cases and charges in Missouri.
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Interview Transcript
Scott Michael Dunn: What are the consequences of refusing a breathalyzer or field sobriety test?
Chris Combs: None. Short answer is none. Your consequences are helping yourself by not letting law enforcement build a case. So there is no consequence.
Now, there are some jurisdictions that have no refusal policies and they’ll take you and get a blood draw. Now again, you can refuse that. Make them go get a search warrant.
But the consequences of refusing any field sobriety, any chemical testing for blood, breath, or urine, any questions, there’s no consequence. You are allowed to do that. That is your right.
Scott Michael Dunn: What should you do if you’re pulled over for suspicion of DUI?
Steve Waterkotte: I’d say number one is comply and be polite. Don’t be a jerk. It’ll serve you no purpose in the end.
But, you can do that while maintaining and asserting your rights. You’re going to have to get out of a vehicle. You can’t say, “No, I’m not going to do that.” But beyond that, when you get out and the officer asks where you’re going, what you had to drink tonight, where are you coming from? You are under no obligation to answer that. And again, you can do it politely.
And then as you get into the testing phase, when you participate or do field sobriety tests, again, you can politely decline all that.
And then lastly a portable breath test, which is a handheld device that they’ll get a reading on to make a probable cause determination. You can also refuse that. So that’d be my advice.
Scott Michael Dunn: What are common mistakes made during a DUI arrest?
Chris Combs: There’s a handful. I would say one of the reasons we threw out “You definitely need to call an attorney,” is because law enforcement is not going to say, “Hey, would you like your 20 minutes to now call a lawyer?”
However, on the license side of things, we’re able to get things thrown out. That is something per NHTSA, National Highway Safety Transportation Manual. Procedurally, you have to give someone who asked to speak to a lawyer a 15 minute observation period. Officers are supposed to observe you for 15 minutes, check your mouth, things of that nature.
I’ve had cases where the cop starts the observation period, and then stops it and the guys in cuffs in the back while he’s driving him to the station. So how do you observe him?
We’re looking for these unforced errors in these alcohol influence reports. The timing of everything is very important. Very technical [are] DWIs. But those are just a couple that we see, quite often.
Scott Michael Dunn: Sure. Excellent.
Chris Combs: And there can be issues with the breathalyzer machine. Did that officer have that proper permit to operate that device? When’s the last time that device was calibrated? Was it registered with the Missouri Department of Health and Senior Services?
Anyway, I could go on and on. There’s lots we look for. Many things we look for.
Scott Michael Dunn: Sure.
What is an ignition interlock device and when is it required?
Steve Waterkotte: Ignition interlock device is a device that’s in your car. A breath test that you blow in periodically. It’ll buzz or beep. Many of them are equipped now with GPS camera.
On a first offense, that almost never applies. Once you get in a second, third, and beyond, depending on the timing, that could be a whole other segment. But when you get in after the first DWI, in many cases, it’s required for a period of time.
But that’s what that is. It’s basically a device to ensure that the driver is not drinking. Anytime that car is in operation, it could beep, and then you are required to blow into the device. There’s no alcohol consumption or on your breath.
Scott Michael Dunn: How does a DUI affect insurance rates?
Chris Combs: Again, it ranges from first offense, et cetera, et cetera.
I would say on a first offense DWI it’s very nominal how much it would affect your insurance. However, as you get up in second offense, third offense. Timing, again, did you get a DWI when you were 22 and now you’re 45? It’s very different than getting one at 33 and then 34.
There’s just a lot of things that go into it, but typically it is relatively nominal for your first offense, if at all. Sometimes, we’re able to avoid it affecting insurance rates at all.
Scott Michael Dunn: How does a DUI affect professional licenses or certifications?
Steve Waterkotte: Many of the professional licensing agencies have mandatory reporting. Meaning, if you’re arrested, you have to report it to whatever agency oversees you. Doctors have theirs, us lawyers have one. I always say the higher you go up in society and professionally, the backgrounds get a little bit more thorough.
We’re able to typically avoid issues. Again, once you go beyond first offenses, it can get a little trickier. But many of them have annual reporting requirements or background checks that they will have to [give] notice that they were arrested or they have a pending case.
Scott Michael Dunn: What should you look for when hiring a DUI attorney?
Steve Waterkotte: Number one is somebody, a firm, a lawyer, who does this as the primary practice. We are a criminal defense firm, which obviously entails DWIs. And so I always tell folks, about 95% of our practice is criminal defense. The other part, orders of protection, which in many cases are criminal or quasi criminal.
So somebody who does this day in and day out. At Combs Waterkotte, our firm, we have three full time attorneys, four full time staff. And this is what we all do every single day. We have a number of DWIs each week, each month. We have a system in place to ensure that that client is getting the proper attention, focus, knowledge. Every year, our attorneys do CLEs, and we do it in the field of DWI, where we had the same training as the officers.
So somebody who specializes, I would say, is the number one thing. And then [the] second component would be somebody, a firm or a lawyer, that is accessible. That you know what’s going on. You’re [that you’re] comfortable with. You’re frequently updated as to the progress of their case.
They’re involved in the decisions. It always makes the attorney-client relationship 100% better when they’re involved [and] they know what’s going on each step of the way. That’s something that we provide at our firm.
Scott Michael Dunn: Can you still drive to work after you get a DUI?
Chris Combs: Yes. The road diverges in one of two paths, depending on whether or not they collect blood, breath, or urine.
Now, if you refuse and they don’t collect anything, you’re almost always given a 15-day driving permit. Let’s assume it’s a first offense. You give it a 15-day driving permit. You have 15 days from that date to contact a lawyer to either file for an administrative hearing to challenge the blood breath or urine with the Missouri Department of Revenue, or if it’s a refusal, they do not collect blood, breath or urine, then you have 15 days. It’s actually 30 by statute, but you ought to do it within the 15 days. Almost always you’re given a 15-day driving permit after DWI arrest.
If you refuse, you need to file what’s called a Petition for Review, commonly referred to as a PFR. That is a petition, a lawsuit against the Missouri Department of Revenue saying, “Stay any adverse action against this driver’s license pending the outcome of a hearing.” Meaning you get your due process. Fifteen days. And then, yes, you can drive throughout your case more often than not.
Scott Michael Dunn: And so if you win this petition or this lawsuit, then you get to keep driving?
Chris Combs: You never lose your license for a day. And you’re looking at a minimal suspension on a first offense.
Scott Michael Dunn: That’s fantastic.
Chris Combs: Typically, 90 days. That’s 30 days hard where you’re not supposed to drive at all. And then 60 days soft once you’ve completed SATOP and get SR-22 insurance. So fully reinstated on the 91st day.
Scott Michael Dunn: Wow.
Can a DUI be expunged?
Steve Waterkotte: It can. Very specific – in fact DWI has its own expungement separate and apart from other crimes – there’s specific criteria that must be met. When someone calls our office, we do a screening to make sure that person qualifies for an expungement.
The number one rule in determining whether or not somebody is eligible, it’s got to be 10 years old from disposition, meaning the plea of guilty and probation. Ten years old, and one and only one offense.
We get calls, someone says, “Hey, I have three,” and they’re trying to hurry up before the fourth one is filed. That cannot be expunged.
So again, the general rule is one offense ten years old.
Scott Michael Dunn: Are there different penalties for first time offenders and repeat offenders?
Chris Combs: Yes there are varying degrees of penalties. A first offense DWI is a B misdemeanor. A second becomes an A [misdemeanor] – again, it depends on the time between them, but typically.
Then by your third, you’re in felony territory. You’re looking at an E felony, and then fourth, a D [felony] . So it goes from persistent to a D, which is aggravated, to a C [felony], which is chronic, to a B felony, which is habitual, which is only second to an A [felony].
So, yes, the varying ranges of punishment, fines, court costs, ramifications on your driver’s license vary dramatically between a first offense and say a fourth offense.
Scott Michael Dunn: And they rise dramatically?
Steve Waterkotte: Yes. And ass you go up –
Chris Combs: Mandatory shock time.
Steve Waterkotte: Correct. That’s exactly what I was gonna say. Mandatory jail time on some of these.
Chris Combs: They’re not negotiable. It’s by statute: Must serve 30 days.
Sometimes in lieu you can do 240 hours between service, et cetera, but there becomes mandatory prison time and/or treatment within the prison system, Missouri Department of Corrections.
Scott Michael Dunn: What’s the process of going to court for a DUI?
Steve Waterkotte: That’s no different really than other crimes. You get a summons. Typically in the DWI sense, you get a citation, you leave the police department with usually a couple of pieces of paper. One of them being your citation, court dates on there.
I always say, typically on a first offense DWI, it’s kind of a ballpark six months to 12 months from start to finish. That can vary depending on jurisdiction.
More often than not, we as the lawyer appear in court on every appearance. Largely speaking, the client doesn’t have to drag themselves in there once a month or every other month. It’s us as lawyers negotiating with the prosecutor, ultimately getting this thing to the finish line. Which, like I said, is typically from start to finish, anywhere from between a six month to 12 month process.
Scott Michael Dunn: Can you plea bargain a DUI case?
Chris Combs: Of course. Go ahead, Steve.
Steve Waterkotte: Yeah, and just like any other criminal case, it’s no different.
After we get the police reports, which we’re entitled to do in every case, we review police reports, dash cam videos. Many times we’ll go to the scene of the location where it occurred.
After we do our investigation, we sit down with our client. After all that occurs, then we’re sitting down with a prosecutor, calling a prosecutor, meeting a prosecutor, and we’re pointing out various flaws in the officer’s investigation and arrest.
That’s I think what separates – we touched on this earlier – folks and attorneys that do this every day, and this is their practice and their specialty area, versus folks that just dabble in this area.
Absolutely you can plea bargain and negotiate. And that’s incumbent on us as the attorney for our client to point out the weaknesses of the officer’s investigation and arrest. And that’s how we often get better deals or reduced deals on DWI cases.
Scott Michael Dunn: How does a DUI affect your driver’s license?
Chris Combs: That’s a pretty loaded question. Again, it depends on first offense, second offense. Typically on a first offense refusal – again, I mentioned earlier, whether you refuse or they collect blood, breath, or urine, it goes two different ways. They collect blood, breath, or urine, you’re challenging the way that was collected, tested, the breathalyzer machine itself, and/or if they do a blood draw, how that is handled. Then you’re challenging that with the Missouri Department of Revenue.
On a first offense, you’re looking at a 90 day suspension, 30 days hard, 60 days soft, a handful of hoops you have to jump through, classes, pay a reinstatement fee, obtain SR-22 insurance.
If you refuse, more often than not, on a first offense, we’re able to keep you from losing your license at all. Again, that’s jurisdiction dependent and every case is fact specific. But on a first offense, you’re really not looking at much of a loss of license.
Scott Michael Dunn: What are the penalties for a DUI conviction?
Steve Waterkotte: Again, we just touched on this. Each one you get, you increase, you go from a B misdemeanor, A misdemeanor, and then on a third you’re jumping into the felony.
With each one, the statutory range of jail time or prison time increases. You get into felonies, there’s mandatory by statute, jail or prison time. Your fines can increase by statute. With each one a person gets it definitely increases along the way in terms of the seriousness of the fines, jail, or prison.
Scott Michael Dunn: How long does a DUI stay on your record?
Chris Combs: That’s another really tough question. Only because it’s something you could talk a long time about.
Everyone has four records. An arrest record, a criminal record, a driving record and then D.F.S/C.P.S, Department of Family Services, Child Protection Services. Your arrest record, as we talked about in the expungement world, you can only get one expunged if you’ve had one and it’s 10 years later, as a general rule of thumb.
We are here to protect your license, your criminal record. So an arrest record, 10 years is typically the answer on that. But your criminal record a lot of times first offense, second offense, we’re able to keep it off your record entirely. Off your driving record, off your criminal record.
Again, as you go up in frequency of how many DWIs you’ve had, things get more stringent and [there are] tougher penalties.
Scott Michael Dunn: What are the long term consequences of a DUI?
Steve Waterkotte: The two most important things you’re looking at is obviously having a conviction possibility becoming part of your criminal record and your license loss.
On a first offense, almost always we’re able to mitigate that. Prevent not only a conviction, but also prevent a license loss in many cases. You get into a second, third, fourth, and beyond, a third being a felony, you’re looking at a conviction as a possibility and not only that, you’re looking at incarceration. You’re looking at longer term periods in which your license can be taken from you. Two in five years is five-year. You lose your license for five years. Three can be ten years.
As you increase in severity or the number of DWIs, you’re looking at stricter penalties, incarceration, longer license loss, and the possibility of conviction being part of your permanent record.
Scott Michael Dunn: And what happens if you get a DUI in another state? To be more specific, outside of your home state?
Chris Combs: It depends on which state. However, whether you like it or not, with technology these days most states can see. If we’re fighting a case on the license side, they’re gonna want to see, “Please get me their California driving record,” or if there’s any inclination that they had [a DWI/DUI] there. Sometimes they go unnoticed.
But if you have one from another state, sometimes it is applicable, sometimes it’s not. That’s the short answer. If you wanted a lengthier answer on that, you could go to our site for more information. We have downloadable ebooks and things like that.
It depends on [the] state. Missouri and Illinois, for instance, have the Interstate Compact Act. They report to each other. But if you’re talking Montana, Missouri, very different.
Scott Michael Dunn: How does probation work for a DUI conviction?
Steve Waterkotte: A misdemeanor, generally two years. It’s capped at two years for misdemeanor probation.
And that is done by usually what we call a private probation agency. Their main task is making sure you don’t get in trouble. Making sure you complete the conditions of your probation, such as SATOP, Victim Impact Panel, community service are the most common ones. Their basic responsibility is to ensure that you’ve completed those programs. They’ll report that back to the court. Also, they are keeping track and making sure that individual hasn’t been arrested.
If a person on probation has been arrested, the agency, the probation agency will report that back to the court. At which point, they will file what’s called a probation revocation. That person will be summoned back in court. And it basically reopens sentencing.
On felony probation, it’s typically a period of five years. It’s capped at five years. Anywhere from three to five years is the typical length of probation for felony. That is through the Board of Probation and Parole. It’s a little bit stricter in the sense that you’re going to have to probably report a little bit more than on the misdemeanor, obviously, as you get into the felony territory.
Their function is largely the same as whether it’s a private probation agency. Making sure that person, they know where they live, they have a current address, that they are completing the programs or the conditions of their probation, and, again, making sure that, just like the misdemeanor that, that individual, the probationer, is not getting in trouble.
[If] they’re arrested, same thing applies with respect to the felony as the misdemeanor. The court will be notified. They will be brought back into court. Again, it reopens that sentencing. So that’s how that works.
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