One of the first questions we usually get from clients facing a DWI charge in St. Louis is some version of this: “I refused the test, so they can’t really prove anything, right?” Honestly, that’s one of the most common misconceptions we encounter, and it matters a lot to get this straight before you make any decisions about your case.
Whether you blew over the legal limit or refused the breathalyzer entirely, you’re now dealing with two separate legal tracks at the same time: the administrative side, which involves your driver’s license, and the criminal side, which involves potential conviction. Understanding how those two tracks play out differently depending on what you did is central to building any kind of DWI defense strategy that actually makes sense for your situation.
Missouri’s Implied Consent Law: What You Already Agreed To
Missouri law specifies that all persons who operate a vehicle within the state are deemed to have, by implication, consented to DWI chemical testing if they have been arrested and there are reasonable grounds to believe they were operating a vehicle while intoxicated. You agree to this whenever you drive on a public road or highway in Missouri, whether you realize it or not.
There are actually separate types of breath testing that may be involved in a Missouri DWI case. The PBT, sometimes called a preliminary breath test or breathalyzer, is a handheld breath testing machine used during a roadside stop. This device is used to give police probable cause to make an arrest but is not used as evidence in court. If you refuse one of these portable breath tests, there are no direct criminal penalties. But that doesn’t mean there are no consequences for saying no.
What Happens When You Refuse the Chemical Test
When you are arrested for a driving while intoxicated offense, a police officer will ask you to submit to a chemical test to determine your blood alcohol content or drug level. While the state of Missouri deems you to have consented to such testing under its implied consent law, you may refuse to submit to the test. However, if you refuse to take the alcohol or drug test, your Missouri driving privilege will be revoked for one year. This is known as a “Chemical Revocation.”
A Chemical Revocation for refusal to submit to an alcohol or drug test is a permanent part of the record and can never be removed. That’s not a typo. Permanent. It does not drop off after a few years the way some people assume.
The clock starts moving fast after a refusal. If you refuse chemical testing, the officer will seize your Missouri license and provide you with a Form 4323, which acts as your 15-day temporary driver’s license. It is extremely important to contact an attorney in those 15 days. An attorney can file a Petition for Review and request a stay order to allow continued driving, so your license will not be immediately revoked. An attorney can also challenge your one-year license revocation during that petition.
About those filing deadlines, and we want to be very clear here: a petition for review must be filed within 30 days from the date the Notice of Revocation is issued. Miss that window and your options become extremely limited. This is one of those situations where waiting to call an attorney is a real mistake.
What Happens When You Take the Test and Fail
If the breath test results show you had a blood alcohol content of 0.08% or higher, this may be used as evidence to show the driver was driving with excessive blood alcohol content. There may also be additional penalties or restrictions if the driver had a BAC of over 0.15% or higher. So the higher the number, the more complicated things tend to get on both the administrative and criminal sides.
A failed test gives prosecutors something concrete to work with. Prosecutors in Missouri use chemical tests as evidence that a driver was intoxicated when driving, and most DWI cases rely, in part, on these chemical breath, blood, or urine tests for a conviction. That said, a failed test does not automatically mean a conviction is inevitable.
Just because a chemical test appears to show you were over the limit does not mean the test is accurate. There are a number of ways to challenge chemical breath tests in a Missouri DWI to fight a criminal conviction. Problems with breath testing devices, the test sample, and the individual operating the machine could result in inaccurate results. Calibration records, operator certifications, the observation period before the test, the actual procedures used, all of these can become meaningful points of challenge. We’ve seen cases turn significantly on those details.
The Tradeoff: Refusal vs. a Failed Test
So which is worse? Frankly, that depends on the facts, and anyone who gives you a blanket answer without knowing your situation isn’t giving you useful advice.
A refusal may help your criminal case because the prosecutor will not have scientific evidence in the form of a chemical test. The case will likely rest solely on the arresting officer’s opinion of intoxication, and this lack of evidence may help your attorney turn the case in your favor. That can be a real advantage in the right circumstances.
But here’s the other side of it. The fact that a driver refused to submit to testing can actually be used against them at trial as evidence of impairment. While refusal doesn’t exactly prove intoxication, prosecutors often argue a refusal is indicative that the person was trying to hide their intoxication.
And there’s one more thing people don’t always consider: when a driver refuses testing, police still have the option of obtaining a warrant to draw blood. If a judge issues a warrant, the driver no longer has a right to refuse testing; police are even permitted to do the blood draw by force if necessary. So in some situations, a refusal doesn’t prevent the state from getting a BAC reading at all. It just creates additional legal steps, and additional consequences.
Two Cases, Two Very Different Paths
Consider two people stopped near downtown St. Louis on the same night. One takes the breath test and blows a 0.10%. The other refuses entirely. On the criminal side, the person who blew over the limit has given prosecutors a number to work with. The person who refused has not, but they now carry the administrative weight of a Chemical Revocation that permanently marks their driving record, and the refusal itself may be used as evidence against them.
These two cases could require very different defense approaches. A failed test case often focuses on the reliability of the testing equipment, the procedures followed, and whether the stop itself was lawful. A refusal case often focuses on the administrative hearing process, whether the implied consent admonishment was properly read, and whether the officer followed required procedures.
Prior to either taking or refusing the breath test, the person may ask to contact an attorney. If a person requests an attorney at any time while dealing with the police officer prior to refusing the breath or other chemical test, the police officer needs to give the person the opportunity to have 20 minutes to contact a defense attorney, or at least to try to. That 20-minute window matters, and many people don’t know to ask for it.
What We Recommend If You’re in This Situation
Whether you declined the test or whether you blew over the limit somewhere in St. Louis, St. Louis County, Jefferson County, or elsewhere in the region, we encourage you to reach out as early as possible after a DWI arrest. The decisions made in the first few days can shape what options remain available later. At Frank & Juengel Law Group, PC, we’ve worked through both types of cases across the St. Louis metro area, and we’re glad to talk through what your specific situation looks like and where the real opportunities may exist for your defense.