“Should I have refused the breath test?” is one of the most common questions after a Missouri DWI arrest. The answer depends on which test you mean, because there are two, and the law treats them very differently.
One is the small handheld device an officer may use at the roadside before deciding whether to arrest. The other is the test requested after arrest, usually on a machine at the station. Refusing the first has no license penalty. Refusing the second costs you your license for a year.
The first test
Can you refuse a roadside breath test in Missouri?
Yes. Refusing the preliminary breath test at the roadside does not trigger the one-year license revocation.
What the roadside test is for
Under RSMo 577.021, an officer may give a chemical test before an arrest. The result can be used as evidence of probable cause to arrest, but it is not admissible to prove your blood alcohol level.
Why refusing it carries no revocation
The statute provides that Missouri’s implied consent provisions do not apply to a test given before arrest. The revocation penalty comes from implied consent, so it does not attach to declining the roadside device.
Declining the roadside test does not prevent an arrest. The officer can still arrest based on other observations. Whether those observations were enough is a question for later.
The second test
What happens if you refuse the breath test at the station?
Under Missouri’s implied consent law, anyone who drives on Missouri roads is considered to have consented to a chemical test after an arrest for an alcohol- or drug-related driving offense.
- Your license is revoked for one year. RSMo 302.574 requires the Department of Revenue to revoke the license of a driver who refuses.
- The refusal is evidence. Under RSMo 577.041, the State can tell the jury in the criminal case that you refused.
- The officer has to explain this first. The request must include the officer’s reasons and tell you that a refusal can be used against you and that your license will be revoked.
- You can ask to call a lawyer. If you ask, you get twenty minutes to try to reach one before a continued refusal counts.
After a refusal
How do you challenge a refusal revocation in Missouri?
Not at a Department of Revenue hearing. A refusal revocation is challenged by filing a petition for review in circuit court in the county where the arrest happened.
What the court decides
The court looks at whether you were arrested, whether the officer had reasonable grounds to believe you were driving while intoxicated, and whether you actually refused. The officer’s grounds for the arrest are often where these cases turn.
Driving while it is pending
The officer issues a 15-day temporary permit. The court may stay the revocation while the petition is pending, but that is discretionary. If you need a limited driving privilege after a refusal, the law requires an ignition interlock.
The deadline to file is short. If you refused, talk to a lawyer right away.
Probable cause
What if the officer never gave field sobriety tests?
It happens more than people expect: the officer notices an odor of alcohol and goes straight to an arrest.
Both the criminal case and the license case depend on whether the officer had probable cause, or reasonable grounds, to arrest. An odor of alcohol shows that someone drank. It does not show that they were intoxicated. When the body camera shows no standardized tests, or tests given in a way the training does not support, the lack of probable cause for the arrest is often the strongest issue in the case.
Answers
Breath test questions we hear
Is it illegal to refuse a breath test in Missouri?
Refusing is not a separate crime, but refusing the test requested after arrest leads to a one-year license revocation, and the refusal can be used as evidence in the DWI case. Refusing the roadside preliminary test does not carry the revocation.
How long is your license revoked for refusing a breath test in Missouri?
One year, under RSMo 302.574.
Can the roadside breath test result be used against me?
Only to show probable cause for the arrest. Under RSMo 577.021 it is not admissible as evidence of your blood alcohol content.
Can I talk to a lawyer before deciding whether to take the test?
If you ask, Missouri law gives you twenty minutes to try to contact an attorney. If you still decline after that, it counts as a refusal.
Can I drive after refusing a breath test?
The officer issues a 15-day temporary permit. After that, you can drive only if a court stays the revocation or you obtain a limited driving privilege, which requires an ignition interlock.
See also whether to request a DOR hearing and our Missouri DWI defense page, or call 573-638-8529.
Talk to us
Refused, or tested? Either way, the clock is running.
The license deadlines after a DWI arrest are short. Call early so the decisions are made on purpose.
Attorney advertising. The choice of a lawyer is an important decision and should not be based solely upon advertisements. This article is general information about Missouri law, not legal advice, and it does not create an attorney-client relationship. It is not advice to refuse or to take any test.
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