FIRST REGULAR SESSION

HOUSE BILL NO. 819

91ST GENERAL ASSEMBLY


INTRODUCED BY REPRESENTATIVES HOSMER, GASKILL, KELLEY (47), SKAGGS, BOUCHER,

WILLIAMS (Co-sponsors), BRITT, MYERS, REINHART, MARBLE, BRAY, BONNER AND BARNETT.

Read 1st time February 15, 2001, and 1000 copies ordered printed.

TED WEDEL, Chief Clerk

0264L.03I


AN ACT

To repeal sections 302.010, 302.060, 302.302, 302.505, 302.510, 302.520, 302.530, 302.541, 302.545, 577.012, 577.017, 577.021, 577.023, 577.037, 577.041, 577.049, 577.054, 577.600, 577.602 and 577.604, RSMo 2000, relating to driving with excessive blood alcohol content, and to enact in lieu thereof twenty-one new sections relating to the same subject, with penalty provisions.




Be it enacted by the General Assembly of the state of Missouri, as follows:

Section A. Sections 302.010, 302.060, 302.302, 302.505, 302.510, 302.520, 302.530, 302.541, 302.545, 577.012, 577.017, 577.021, 577.023, 577.037, 577.041, 577.049, 577.054, 577.600, 577.602 and 577.604, RSMo 2000, are repealed and twenty-one new sections enacted in lieu thereof, to be known as sections 302.010, 302.060, 302.302, 302.505, 302.510, 302.520, 302.530, 302.541, 302.545, 577.012, 577.017, 577.021, 577.023, 577.037, 577.041, 577.049, 577.054, 577.600, 577.602, 577.604 and 577.700, to read as follows:

302.010. Except where otherwise provided, when used in this chapter, the following words and phrases mean:

(1) "Circuit court", each circuit court in the state;

(2) "Commercial motor vehicle", a motor vehicle designed or regularly used for carrying freight and merchandise, or more than fifteen passengers;

(3) "Conviction", any final conviction; also a forfeiture of bail or collateral deposited to secure a defendant's appearance in court, which forfeiture has not been vacated, shall be equivalent to a conviction, except that when any conviction as a result of which points are assessed pursuant to section 302.302 is appealed, the term "conviction" means the original judgment of conviction for the purpose of determining the assessment of points, and the date of final judgment affirming the conviction shall be the date determining the beginning of any license suspension or revocation pursuant to section 302.304;

(4) "Director", the director of revenue acting directly or through the director's authorized officers and agents;

(5) "Farm tractor", every motor vehicle designed and used primarily as a farm implement for drawing plows, mowing machines and other implements of husbandry;

(6) "Highway", any public thoroughfare for vehicles, including state roads, county roads and public streets, avenues, boulevards, parkways, or alleys in any municipality;

(7) "Incompetent to drive a motor vehicle", a person who has become physically incapable of meeting the prescribed requirements of an examination for an operator's license, or who has been adjudged by a probate division of the circuit court in a capacity hearing of being incapacitated;

(8) "License", a license issued by a state to a person which authorizes a person to operate a motor vehicle;

(9) "Motor vehicle", any self-propelled vehicle not operated exclusively upon tracks except motorized bicycles, as defined in section 307.180, RSMo;

(10) "Motorcycle", a motor vehicle operated on two wheels; however, this definition shall not include motorized bicycles as defined in section 301.010, RSMo;

(11) "Motortricycle", a motor vehicle operated on three wheels, including a motorcycle operated with any conveyance, temporary or otherwise, requiring the use of a third wheel;

(12) "Moving violation", that character of traffic violation where at the time of violation the motor vehicle involved is in motion, except that the term does not include the driving of a motor vehicle without a valid motor vehicle registration license, or violations of sections 304.170 to 304.240, RSMo, inclusive, relating to sizes and weights of vehicles;

(13) "Municipal court", every division of the circuit court having original jurisdiction to try persons for violations of city ordinances;

(14) "Nonresident", every person who is not a resident of this state;

(15) "Operator", every person who is in actual physical control of a motor vehicle upon a highway;

(16) "Owner", a person who holds the legal title of a vehicle or in the event a vehicle is the subject of an agreement for the conditional sale or lease thereof with the right of purchase upon performance of the conditions stated in the agreement and with an immediate right of possession vested in the conditional vendee or lessee, or in the event a mortgagor of a vehicle is entitled to possession, then such conditional vendee or lessee or mortgagor shall be deemed the owner for the purpose of sections 302.010 to 302.540;

(17) "Record" includes, but is not limited to, papers, documents, facsimile information, microphotographic process, electronically generated or electronically recorded information, digitized images, deposited or filed with the department of revenue;

(18) "Relating to driving while intoxicated", as used in section 302.060 includes driving while intoxicated, driving with excessive blood alcohol content, involuntary manslaughter and murder where driving while intoxicated is an element of the offense;

(19) "School bus", when used in sections 302.010 to 302.540, means any motor vehicle, either publicly or privately owned, used to transport students to and from school, or to transport pupils properly chaperoned to and from any place within the state for educational purposes. The term "school bus" shall not include a bus operated by a public utility, municipal corporation or common carrier authorized to conduct local or interstate transportation of passengers when such bus is not traveling a specific school bus route but is:

(a) On a regularly scheduled route for the transportation of fare-paying passengers; or

(b) Furnishing charter service for the transportation of persons enrolled as students on field trips or other special trips or in connection with other special events;

[(19)] (20) "School bus operator", an operator who operates a school bus as defined in subdivision (18) of this section in the transportation of any school children and who receives compensation for such service. The term "school bus operator" shall not include any person who transports school children as an incident to employment with a school or school district, such as a teacher, coach, administrator, secretary, school nurse, or janitor unless such person is under contract with or employed by a school or school district as a school bus operator;

[(20)] (21) "Signature", any method determined by the director of revenue for the signing, subscribing or verifying of a record, report, application, driver's license, or other related document that shall have the same validity and consequences as the actual signing by the person providing the record, report, application, driver's license or related document;

[(21)] (22) "Substance abuse traffic offender program", a program certified by the division of alcohol and drug abuse of the department of mental health to provide education or rehabilitation services pursuant to a professional assessment screening to identify the individual needs of the person who has been referred to the program as the result of an alcohol or drug related traffic offense. Successful completion of such a program includes participation in any education or rehabilitation program required to meet the needs identified in the assessment screening. The assignment recommendations based upon such assessment shall be subject to judicial review as provided in subsection [13] 14 of section 302.304 and subsections 1 and 5 of section 302.540;

[(22)] (23) "Vehicle", any mechanical device on wheels, designed primarily for use, or used on highways, except motorized bicycles, vehicles propelled or drawn by horses or human power, or vehicles used exclusively on fixed rails or tracks, or cotton trailers or motorized wheelchairs operated by handicapped persons.

302.060. The director shall not issue any license and shall immediately deny any driving privilege:

(1) To any person who is under the age of eighteen years, if such person operates a motor vehicle in the transportation of persons or property as classified in section 302.015;

(2) To any person who is under the age of sixteen years, except as hereinafter provided;

(3) To any person whose license has been suspended, during such suspension, or to any person whose license has been revoked, until the expiration of one year after such license was revoked;

(4) To any person who is an habitual drunkard or is addicted to the use of narcotic drugs;

(5) To any person who has previously been adjudged to be incapacitated and who at the time of application has not been restored to partial capacity;

(6) To any person who, when required by this law to take an examination, has failed to pass such examination;

(7) To any person who has an unsatisfied judgment against such person, as defined in chapter 303, RSMo, until such judgment has been satisfied or the financial responsibility of such person, as defined in section 303.120, RSMo, has been established;

(8) To any person whose application shows that the person has been convicted within one year prior to such application of violating the laws of this state relating to failure to stop after an accident and to disclose the person's identity or driving a motor vehicle without the owner's consent;

(9) To any person who has been convicted more than twice of violating state law, or a county or municipal ordinance where the judge in such cases was an attorney and the defendant was represented by or waived the right to an attorney in writing, relating to driving while intoxicated; except that, after the expiration of ten years from the date of conviction of the last offense of violating such law or ordinance relating to driving while intoxicated, a person who was so convicted may petition the circuit court of the county in which such last conviction was rendered and the court shall review the person's habits and conduct since such conviction. If the court finds that the petitioner has not been convicted of any offense related to alcohol, controlled substances or drugs during the preceding ten years and that the petitioner's habits and conduct show such petitioner to no longer pose a threat to the public safety of this state, the court may order the director to issue a license to the petitioner if the petitioner is otherwise qualified pursuant to the provisions of sections 302.010 to 302.540. No person may obtain a license pursuant to the provisions of this subdivision through court action more than one time;

(10) To any person who has been convicted twice within a five-year period of violating state law, or a county or municipal ordinance where the judge in such cases was an attorney and the defendant was represented by or waived the right to an attorney in writing, [of] relating to driving while intoxicated, [or] except that any person who has been convicted [of the crime] for one offense of involuntary manslaughter [while operating a motor vehicle in an intoxicated condition] or murder where driving while intoxicated is an element of the offense shall not be issued a license or shall have such licensed immediately denied. The director shall not issue a license to such person for five years from the date such person was convicted for involuntary manslaughter [while operating a motor vehicle in an intoxicated condition] or murder where driving while intoxicated is an element of the offense or for other crimes related to driving while intoxicated for the second time[. Any person who has been denied a license for two convictions of driving while intoxicated prior to July 27, 1989, shall have the person's license issued, upon application, unless the two convictions occurred within a five-year period, in which case, no license shall be issued to the person for five years from the date of the second conviction];

(11) To any person who is otherwise disqualified pursuant to the provisions of sections 302.010 to 302.780, chapter 303, RSMo, or section 544.046, RSMo;

(12) To any person who is under the age of eighteen years, if such person's parents or legal guardians file a certified document with the department of revenue stating that the director shall not issue such person a driver's license. Each document filed by the person's parents or legal guardians shall be made upon a form furnished by the director and shall include identifying information of the person for whom the parents or legal guardians are denying the driver's license. The document shall also contain identifying information of the person's parents or legal guardians. The document shall be certified by the parents or legal guardians to be true and correct. This provision shall not apply to any person who is legally emancipated. The parents or legal guardians may later file an additional document with the department of revenue which reinstates the person's ability to receive a driver's license.

302.302. 1. The director of revenue shall put into effect a point system for the suspension and revocation of licenses. Points shall be assessed only after a conviction or forfeiture of collateral. The initial point value is as follows:

(1) Any moving violation of a state law or county or municipal or

federal traffic ordinance or regulation not listed in this section, other

than a violation of vehicle equipment provisions or a court-ordered

supervision as provided in section 302.303 2 points

(except any violation of municipal stop sign ordinance where no accident is

involved 1 point)

(2) Speeding

In violation of a state law 3 points

In violation of a county or municipal ordinance 2 points

(3) Leaving the scene of an accident in violation of section

577.060, RSMo 12 points

In violation of any county or municipal ordinance 6 points

(4) Careless and imprudent driving in violation of subsection 4

of section 304.016, RSMo 4 points

In violation of a county or municipal ordinance 2 points

(5) Operating without a valid license in violation of subdivision (1) or

(2) of subsection 1 of section 302.020:

(a) For the first conviction 2 points

(b) For the second conviction 4 points

(c) For the third conviction 6 points

(6) Operating with a suspended or revoked license prior to restoration of

operating privileges 12 points

(7) Obtaining a license by misrepresentation 12 points

(8) For the first conviction of driving while in an intoxicated condition

or under the influence of controlled substances or drugs 8 points

(9) For the second or subsequent conviction of any of the following

offenses however combined: driving while in an intoxicated condition, driving

under the influence of controlled substances or drugs or driving with a blood

alcohol content of [ten-hundredths] eight-hundredths of one percent or

more by weight 12 points

(10) For the first conviction for driving with blood alcohol content

[ten-hundredths] of eight hundredths of one percent or more by weight

In violation of state law 8 points

In violation of a county or municipal ordinance or federal law or

regulation 8 points

(11) For a conviction of aggravated driving with an excessive blood

alcohol content 12 points

(12) Any felony involving the use of a motor vehicle 12 points

[(12)] (13) Knowingly permitting unlicensed operator to operate a motor

vehicle 4 points

[(13)] (14) For a conviction for failure to maintain financial responsibility

pursuant to county or municipal ordinance or pursuant to section

303.025, RSMo 4 points

2. The director shall, as provided in subdivision (5) of subsection 1 of this section, assess an operator points for a conviction pursuant to subdivision (1) or (2) of subsection 1 of section 302.020, when the director issues such operator a license or permit pursuant to the provisions of sections 302.010 to 302.340.

3. An additional two points shall be assessed when personal injury or property damage results from any violation listed in subsection 1 of this section and if found to be warranted and certified by the reporting court.

4. When any of the acts listed in subdivision (2), (3), (4) or (8) of subsection 1 of this section constitutes both a violation of a state law and a violation of a county or municipal ordinance, points may be assessed for either violation but not for both. Notwithstanding that an offense arising out of the same occurrence could be construed to be a violation of subdivisions (8), (9) [and], (10) and (11) of subsection 1 of this section, no person shall be tried or convicted for more than one offense pursuant to subdivisions (8), (9) [and], (10) and (11) of subsection 1 of this section for offenses arising out of the same occurrence.

5. The director of revenue shall put into effect a system for staying the assessment of points against an operator. The system shall provide that the satisfactory completion of a driver-improvement program or, in the case of violations committed while operating a motorcycle, a motorcycle- rider training course approved by the director of the department of public safety, by an operator, when so ordered and verified by any court having jurisdiction over any law of this state or county or municipal ordinance, regulating motor vehicles, other than a violation committed in a commercial motor vehicle as defined in section 302.700, shall be accepted by the director in lieu of the assessment of points for a violation pursuant to subdivision (1), (2), or (4) of subsection 1 of this section or pursuant to subsection 3 of this section. For the purposes of this subsection, the driver-improvement program shall meet or exceed the standards of the National Safety Council's eight-hour "Defensive Driving Course" or, in the case of a violation which occurred during the operation of a motorcycle, the program shall meet the standards established by the director of the department of public safety pursuant to sections 302.133 to 302.138. The completion of a driver-improvement program or a motorcycle-rider training course shall not be accepted in lieu of points more than one time in any thirty-six-month period and shall be completed within sixty days of the date of conviction in order to be accepted in lieu of the assessment of points. Every court having jurisdiction pursuant to the provisions of this subsection shall, within fifteen days after completion of the driver- improvement program or motorcycle-rider training course by an operator, forward a record of the completion to the director, all other provisions of the law to the contrary notwithstanding. The director shall establish procedures for record keeping and the administration of this subsection.

302.505. 1. The department shall suspend or revoke the license of any person upon its determination that the person was arrested upon probable cause to believe such person was driving a motor vehicle while the alcohol concentration in the person's blood, breath, or urine was [ten-hundredths] eight-hundredths of one percent or more by weight, based on the definition of alcohol concentration in section 302.500, or where such person was less than twenty-one years of age when stopped and was stopped upon probable cause to believe such person was driving while intoxicated in violation of section 577.010, RSMo, or driving with excessive blood alcohol content in violation of section 577.012, RSMo, or upon probable cause to believe such person violated a state, county or municipal traffic offense or was stopped at a sobriety checkpoint or roadblock and such person was driving with a blood alcohol content of two-hundredths of one percent or more by weight but less than eight-hundredths of one percent by weight.

2. The department shall make a determination of these facts on the basis of the report of a law enforcement officer required in section 302.510, and this determination shall be final unless a hearing is requested and held. If a hearing is held, the department shall review the matter and make a final determination on the basis of evidence received at the hearing.

3. The determination of these facts by the department is independent of the determination of the same or similar facts in the adjudication of any criminal charges arising out of the same occurrence. The disposition of those criminal charges shall not affect any suspension or revocation under this section.

302.510. 1. Except as provided in subsection 3 of this section, a law enforcement officer who arrests any person for a violation of any state statute related to driving while intoxicated or for a violation of a county or municipal ordinance prohibiting driving while intoxicated or a county or municipal alcohol related traffic offense, and in which the alcohol concentration in the person's blood, breath, or urine was [ten-hundredths] eight-hundredths of one percent or more by weight or two-hundredths of one percent or more by weight but less than eight-hundredths of one percent by weight for anyone less than twenty-one years of age, shall forward to the department a [verified] certified report of all information relevant to the enforcement action, including information which adequately identifies the arrested person, a statement of the officer's grounds for belief that the person violated any state statute related to driving while intoxicated or was less than twenty-one years of age and was driving with two-hundredths of one percent or more by weight but less than eight-hundredths of one percent by weight of alcohol in the person's blood, or a county or municipal ordinance prohibiting driving while intoxicated or a county or municipal alcohol related traffic offense, a report of the results of any chemical tests which were conducted, and a copy of the citation and complaint filed with the court.

2. The report required by this section shall be certified under penalties of perjury or for making a false statement to a public official and made on forms supplied by the department or in a manner specified by regulations of the department.

3. A county or municipal ordinance prohibiting driving while intoxicated or a county or municipal alcohol related traffic offense may not be the basis for suspension or revocation of a driver's license pursuant to sections 302.500 to 302.540, unless the arresting law enforcement officer, other than an elected peace officer or official, has been certified by the director of the department of public safety pursuant to the provisions of sections 590.100 to 590.180, RSMo.

302.520. 1. Whenever the chemical test results are available to the law enforcement officer while the arrested person is still in custody, and where the results show an alcohol concentration of [ten-hundredths] eight-hundredths of one percent or more by weight of alcohol in such person's blood or where such person is less than twenty-one years of age and the results show that there is two-hundredths of one percent or more but less than eight-hundredths of one percent by weight of alcohol in the person's blood, the officer, acting on behalf of the department, shall serve the notice of suspension or revocation personally on the arrested person.

2. When the law enforcement officer serves the notice of suspension or revocation, the officer shall take possession of any driver's license issued by this state which is held by the person. When the officer takes possession of a valid driver's license issued by this state, the officer, acting on behalf of the department, shall issue a temporary permit which is valid for fifteen days after its date of issuance and shall also give the person arrested a notice which shall inform the person of all rights and responsibilities pursuant to sections 302.500 to 302.540. The notice shall be in such form so that the arrested person may sign the original as evidence of receipt thereof. The notice shall also contain a detachable form permitting the arrested person to request a hearing. Signing the hearing request form and mailing such request to the department shall constitute a formal application for a hearing.

3. A copy of the completed notice of suspension or revocation form, a copy of any completed temporary permit form, a copy of the notice of rights and responsibilities given to the arrested person, including any request for hearing, and any driver's license taken into possession pursuant to this section shall be forwarded to the department by the officer along with the report required in section 302.510.

4. The department shall provide forms for notice of suspension or revocation, for notice of rights and responsibilities, for request for a hearing and for temporary permits to law enforcement agencies.

302.530. 1. Any person who has received a notice of suspension or revocation may make a request within fifteen days of receipt of the notice for a review of the department's determination at a hearing. If the person's driver's license has not been previously surrendered, it [shall] may be surrendered at the time the request for a hearing is made.

2. At the time the request for a hearing is made, if it appears from the record that the person is the holder of a valid driver's license issued by this state, and that the driver's license has been surrendered as required, the department shall issue a temporary permit which shall be valid until the scheduled date for the hearing. The department may later issue an additional temporary permit or permits in order to stay the effective date of the suspension or revocation until the final order is issued following the hearing, as required by section 302.520.

3. The hearing may be held by telephone, or if requested by the person, such person's attorney or representative, in the county where the arrest was made. The hearing shall be conducted by examiners who are licensed to practice law in the state of Missouri and who are employed by the department on a part-time or full-time basis as the department may determine.

4. The sole issue at the hearing shall be whether by a preponderance of the evidence the person was driving a vehicle pursuant to the circumstances set out in section 302.505. The burden of proof shall be on the state to adduce such evidence. If the department finds the affirmative of this issue, the suspension or revocation order shall be sustained. If the department finds the negative of the issue, the suspension or revocation order shall be rescinded.

5. The procedure at such hearing shall be conducted in accordance with chapter 536, RSMo, [not otherwise in conflict] except when chapter 536, RSMo, conflicts with sections 302.500 to 302.540. A report certified pursuant to subsection 2 of section 302.510 shall be admissible as evidence of the facts stated therein and any provision of chapter 536, RSMo, to the contrary shall not apply.

6. The department shall promptly notify, by certified letter, the person of its decision including the reasons for that decision. Such notification shall include a notice advising the person that the department's decision shall be final within fifteen days from the date of certification of the letter unless the person challenges the department's decision within that time period by filing an appeal in the circuit court in the county where the arrest occurred.

7. Unless the person, within fifteen days after being notified by certified letter of the department's decision, files an appeal for judicial review pursuant to section 302.535, the decision of the department shall be final.

8. The director may adopt any rules and regulations necessary to carry out the provisions of this section.

302.541. 1. In addition to other fees required by law, any person who has had a license to operate a motor vehicle suspended or revoked following a determination, pursuant to section 302.505, or section 577.010, 577.012, 577.015, 577.041 or 577.510, RSMo, or any county or municipal ordinance, where the judge in such case was an attorney and the defendant was represented by or waived the right to an attorney, that such person was driving while intoxicated or with a blood alcohol content of [ten-hundredths] eight-hundredths of one percent or more by weight or, where such person was at the time of the arrest less than twenty-one years of age and was driving with a blood alcohol content of two-hundredths of one percent or more but less than eight-hundredths of one percent by weight, shall pay an additional fee of twenty-five dollars prior to the reinstatement or reissuance of the license.

2. Any person less than twenty-one years of age whose driving privilege has been suspended or revoked solely for a first determination pursuant to sections 302.500 to 302.540 that such person was driving a motor vehicle with two-hundredths of one percent or more but less than eight-hundredths of one percent by weight blood alcohol content is exempt from filing proof of financial responsibility with the department of revenue in accordance with chapter 303, RSMo, as a prerequisite for reinstatement of driving privileges or obtaining a restricted driving privilege as provided by section 302.525.

302.545. 1. Any person who is less than twenty-one years of age and whose driving privilege has been suspended or revoked, for a first determination under sections 302.500 to 302.540, that such person was driving with two-hundredths of one percent but less than eight-hundredths of one percent by weight of blood alcohol content, shall have all official records and all recordations maintained by the department of revenue of such suspension or revocation expunged two years after the date of such suspension or revocation, or when such person attains the age of twenty-one, whichever date first occurs. Such expungement shall be performed by the department of revenue without need of a court order. No records shall be expunged if the person was found guilty or pled guilty to operating a commercial motor vehicle, as defined in section 302.700, with a blood alcohol content of at least four-hundredths of one percent.

2. The provisions of this section shall not apply to any person whose license is suspended or revoked for a second or subsequent time pursuant to subsection 1 of this section or who is convicted of any alcohol-related driving offense before the age of twenty-one including, but not limited to:

(1) Driving while intoxicated pursuant to section 577.010, RSMo; or

(2) Driving with excessive blood alcohol content pursuant to section 577.012, RSMo.

577.012. 1. A person commits the crime of "driving with excessive blood alcohol content" if such person operates a motor vehicle in this state with [ten-hundredths] eight-hundredths of one percent or more by weight of alcohol in such person's blood.

2. As used in this section, percent by weight of alcohol in the blood shall be based upon grams of alcohol per one hundred milliliters of blood or two hundred ten liters of breath and may be shown by chemical analysis of the person's blood, breath, saliva or urine. For the purposes of determining the alcoholic content of a person's blood under this section, the test shall be conducted in accordance with the provisions of sections 577.020 to 577.041.

3. For the first offense, driving with excessive blood alcohol content is a class [C] B misdemeanor.

577.017. 1. No person shall possess an open or unsealed bottle, can or other receptacle that contains an alcoholic beverage or consume [any] an alcoholic beverage while [operating a moving] in the passenger area of any motor vehicle [upon the highways] located on a highway, as defined in section 301.010, RSMo, or the right-of-way of a highway.

2. This section shall not apply to possession of an unsealed but closed receptacle stored behind the last upright seat of a motor vehicle that is not equipped with a trunk.

3. This section shall apply to the driver but shall not apply to any other person in the passenger area of a motor vehicle designed, maintained or used primarily for the transportation of persons for compensation or in the living quarters of a house coach or house trailer.

4. As used in this section, the term "passenger area" shall mean the area of a motor vehicle designed to seat the driver and passengers while the motor vehicle is in operation and any area that is readily accessible to the driver or a passenger while in their seating positions, including the glove compartment.

5. As used in this section, the term "alcoholic beverage" means: beer, ale, porter, stout, sake, and other similar beverages fermented wholly or in part from malt or any substitute thereof and containing one-half of one percent or more of alcohol by volume; wine containing one-half of one percent or more of alcohol by volume; or distilled spirits, including ethyl alcohol, ethanol, or spirits of wine in any beverage form, including all dilutions and mixtures thereof from whatever source or by whatever process produced.

6. Any person found guilty of violating the provisions of this section is guilty of an infraction.

[3.] 7. Any infraction [under] pursuant to this section shall not reflect on any records with the department of revenue.

577.021. [A member of the state highway patrol] Any state, county, or municipal law enforcement officer who has the power of arrest for violations of section 577.010 or 577.012 and who is certified pursuant to chapter 590, RSMo, may, prior to arrest, administer a chemical test to any person suspected of operating a motor vehicle in violation of section 577.010 or 577.012. A test administered pursuant to this section shall be admissible as evidence of probable cause to arrest and as exculpatory evidence, but shall not be admissible as evidence of blood alcohol content. The provisions of section 577.020 shall not apply to a test administered prior to arrest pursuant to this section.

577.023. 1. For purposes of this section, unless the context clearly indicates otherwise:

(1) An "intoxication-related traffic offense" is driving while intoxicated, driving with excessive blood alcohol content, involuntary manslaughter pursuant to subdivision (2) of subsection 1 of section 565.024, RSMo, assault in the second degree pursuant to subdivision (4) of subsection 1 of section 565.060, RSMo, assault of a law enforcement officer in the second degree pursuant to subdivision (3) of subsection 1 of section 565.082, RSMo, or driving under the influence of alcohol or drugs in violation of state law or a county or municipal ordinance, where the judge in such case was an attorney and the defendant was represented by or waived the right to an attorney in writing;

(2) A "persistent offender" is one of the following:

(a) A person who has pleaded guilty to or has been found guilty of two or more intoxication-related traffic offenses, where such two or more offenses occurred within ten years of the occurrence of the intoxication-related traffic offense for which the person is charged;

(b) A person who has pleaded guilty to or has been found guilty of involuntary manslaughter pursuant to subsection 1 of section 565.024, RSMo, assault in the second degree pursuant to subdivision (4) of subsection 1 of section 565.060, RSMo, assault of a law enforcement officer in the second degree pursuant to subdivision (3) of subsection 1 of section 565.082, RSMo; and

(3) A "prior offender" is a person who has pleaded guilty to or has been found guilty of one intoxication-related traffic offense, where such prior offense occurred within five years of the occurrence of the intoxication-related traffic offense for which the person is charged.

2. Any person who pleads guilty to or is found guilty of a violation of section 577.010 or 577.012 who is alleged and proved to be a prior offender shall be guilty of a class A misdemeanor.

3. Any person who pleads guilty to or is found guilty of a violation of section 577.010 or 577.012 who is alleged and proved to be a persistent offender shall be guilty of a class D felony.

4. No court shall suspend the imposition of sentence as to a prior or persistent offender under this section nor sentence such person to pay a fine in lieu of a term of imprisonment, section 557.011, RSMo, to the contrary notwithstanding[, nor shall such person be eligible for parole or probation until he has served a minimum of forty-eight consecutive hours' imprisonment, unless as a condition of such parole or probation such person performs at least ten days of community service under the supervision of the court in those jurisdictions which have a recognized program for community service]. No prior offender shall be eligible for parole or probation until he or she has served a minimum of five days imprisonment, unless as a condition of such parole or probation such person performs at least thirty days of community service under the supervision of the court in those jurisdictions which have a recognized program for community service. No persistent offender shall be eligible for parole or probation until he or she has served a minimum of ten days imprisonment, unless as a condition of such parole or probation such person performs at least sixty days of community service under the supervision of the court in those jurisdictions which have a recognized program for community service.

5. The court shall find the defendant to be a prior offender or persistent offender, if:

(1) The indictment or information, original or amended, or the information in lieu of an indictment pleads all essential facts warranting a finding that the defendant is a prior offender or persistent offender; and

(2) Evidence is introduced that establishes sufficient facts pleaded to warrant a finding beyond a reasonable doubt the defendant is a prior offender or persistent offender; and

(3) The court makes findings of fact that warrant a finding beyond a reasonable doubt by the court that the defendant is a prior offender or persistent offender.

6. In a jury trial, the facts shall be pleaded, established and found prior to submission to the jury outside of its hearing.

7. In a trial without a jury or upon a plea of guilty, the court may defer the proof in findings of such facts to a later time, but prior to sentencing.

8. The defendant shall be accorded full rights of confrontation and cross-examination, with the opportunity to present evidence, at such hearings.

9. The defendant may waive proof of the facts alleged.

10. Nothing in this section shall prevent the use of presentence investigations or commitments.

11. At the sentencing hearing both the state and the defendant shall be permitted to present additional information bearing on the issue of sentence.

12. The pleas or findings of guilty shall be prior to the date of commission of the present offense.

13. The court shall not instruct the jury as to the range of punishment or allow the jury, upon a finding of guilty, to assess and declare the punishment as part of its verdict in cases of prior offenders or persistent offenders.

14. Evidence of prior convictions shall be heard and determined by the trial court out of the hearing of the jury prior to the submission of the case to the jury, and shall include but not be limited to evidence of convictions received by a search of the records of the Missouri uniform law enforcement system maintained by the Missouri state highway patrol. After hearing the evidence, the court shall enter its findings thereon. A conviction of a violation of a municipal or county ordinance in a county or municipal court for driving while intoxicated or a conviction or a plea of guilty or a finding of guilty followed by a suspended imposition of sentence, suspended execution of sentence, probation or parole or any combination thereof in a state court shall be treated as a prior conviction.

577.037. 1. Upon the trial of any person for violation of any of the provisions of section 565.024, RSMo, or section 565.060, RSMo, or section 577.010 or 577.012, or upon the trial of any criminal action or violations of county or municipal ordinances or in any license suspension or revocation proceeding pursuant to the provisions of chapter 302, RSMo, arising out of acts alleged to have been committed by any person while driving a motor vehicle while in an intoxicated condition, the amount of alcohol in the person's blood at the time of the act alleged as shown by any chemical analysis of the person's blood, breath, saliva or urine is admissible in evidence and the provisions of subdivision (5) of section 491.060, RSMo, shall not prevent the admissibility or introduction of such evidence if otherwise admissible. If there was [ten-hundredths] eight-hundredths of one percent or more by weight of alcohol in the person's blood, this shall be prima facie evidence that the person was intoxicated at the time the specimen was taken.

2. Percent by weight of alcohol in the blood shall be based upon grams of alcohol per one hundred milliliters of blood or grams of alcohol per two hundred ten liters of breath.

3. The foregoing provisions of this section shall not be construed as limiting the introduction of any other competent evidence bearing upon the question whether the person was intoxicated.

4. A chemical analysis of a person's breath, blood, saliva or urine, in order to give rise to the presumption or to have the effect provided for in subsection 1 of this section, shall have been performed as provided in sections 577.020 to 577.041 and in accordance with methods and standards approved by the state department of health.

5. Any charge alleging a violation of section 577.010 or 577.012 or any county or municipal ordinance prohibiting driving while intoxicated or driving under the influence of alcohol shall be dismissed with prejudice if a chemical analysis of the defendant's breath, blood, saliva, or urine performed in accordance with sections 577.020 to 577.041 and rules promulgated thereunder by the state department of health demonstrate that there was less than [ten-hundredths] eight-hundredths of one percent of alcohol in the defendant's blood unless one or more of the following considerations cause the court to find a dismissal unwarranted:

(1) There is evidence that the chemical analysis is unreliable as evidence of the defendant's intoxication at the time of the alleged violation due to the lapse of time between the alleged violation and the obtaining of the specimen;

(2) There is evidence that the defendant was under the influence of a controlled substance, or drug, or a combination of either or both with or without alcohol; or

(3) There is substantial evidence of intoxication from physical observations of witnesses or admissions of the defendant.

577.041. 1. If a person under arrest, or who has been stopped pursuant to [subdivision (2) or (3)] subdivisions (1) to (4) of subsection 1 of section 577.020, refuses upon the request of the officer to submit to any test allowed pursuant to section 577.020, then none shall be given and evidence of the refusal shall be admissible in a proceeding pursuant to section 565.024 or 565.060, RSMo, or section 577.010 or 577.012. The request of the officer shall include the reasons of the officer for requesting the person to submit to a test and also shall inform the person that evidence of refusal to take the test may be used against such person and that the person's license shall be immediately revoked upon refusal to take the test. If a person when requested to submit to any test allowed pursuant to section 577.020 requests to speak to an attorney, the person shall be granted twenty minutes in which to attempt to contact an attorney. If upon the completion of the twenty-minute period the person continues to refuse to submit to any test, it shall be deemed a refusal. In this event, the officer shall, on behalf of the director of revenue, serve the notice of license revocation personally upon the person and shall take possession of any license to operate a motor vehicle issued by this state which is held by that person. The officer shall issue a temporary permit, on behalf of the director of revenue, which is valid for fifteen days and shall also give the person a notice of such person's right to file a petition for review to contest the license revocation.

2. The officer shall make a [sworn] certified report to the director of revenue in a format prescribed by the director, which shall include the following:

(1) That the officer has:

(a) Reasonable grounds to believe that the arrested person was driving a motor vehicle while in an intoxicated or drugged condition; or

(b) Reasonable grounds to believe that the person stopped, being under the age of twenty-one years, was driving a motor vehicle with a blood alcohol content of two-hundredths of one percent or more by weight; or

(c) Reasonable grounds to believe that the person stopped, being under the age of twenty-one years, was committing a violation of the traffic laws of the state, or political subdivision of the state, and such officer has reasonable grounds to believe, after making such stop, that the person had a blood alcohol content of two-hundredths of one percent or greater;

(2) That the person refused to submit to a chemical test;

(3) Whether the officer secured the license to operate a motor vehicle of the person;

(4) Whether the officer issued a fifteen-day temporary permit;

(5) Copies of the notice of revocation, the fifteen-day temporary permit and the notice of the right to file a petition for review, which notices and permit may be combined in one document; and

(6) Any license to operate a motor vehicle which the officer has taken into possession.

3. Upon receipt of the officer's report, the director shall revoke the license of the person refusing to take the test for a period of one year; or if the person is a nonresident, such person's operating permit or privilege shall be revoked for one year; or if the person is a resident without a license or permit to operate a motor vehicle in this state, an order shall be issued denying the person the issuance of a license or permit for a period of one year.

4. If a person's license has been revoked because of the person's refusal to submit to a chemical test, such person may petition for a hearing before a circuit or associate circuit court in the county in which the arrest or stop occurred. The person may request such court to issue an order staying the revocation until such time as the petition for review can be heard. If the court, in its discretion, grants such stay, it shall enter the order upon a form prescribed by the director of revenue and shall send a copy of such order to the director. Such order shall serve as proof of the privilege to operate a motor vehicle in this state and the director shall maintain possession of the person's license to operate a motor vehicle until termination of any revocation pursuant to this section. Upon the person's request the clerk of the court shall notify the prosecuting attorney of the county and the prosecutor shall appear at the hearing on behalf of the director of revenue. At the hearing the court shall determine 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 motor vehicle while in an intoxicated or drugged condition; or

(b) Reasonable grounds to believe that the person stopped, being under the age of twenty-one years, was driving a motor vehicle with a blood alcohol content of two-hundredths of one percent or more by weight; or

(c) Reasonable grounds to believe that the person stopped, being under the age of twenty-one years, was committing a violation of the traffic laws of the state, or political subdivision of the state, and such officer had reasonable grounds to believe, after making such stop, that the person had a blood alcohol content of two-hundredths of one percent or greater; 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 to drive.

6. Requests for review as provided in this section shall go to the head of the docket of the court wherein filed.

7. No person who has had a license to operate a motor vehicle suspended or revoked pursuant to the provisions of this section shall have that license reinstated until such person has participated in and successfully completed a substance abuse traffic offender program defined in section 577.001, except the department or the court may waive such requirement upon completion of a comparable program or upon good cause shown or the court may waive such requirement upon good cause shown. The court in making this determination shall consider the person's driving record, the circumstances surrounding the offense and the likelihood of the person committing a like offense in the future. Assignment recommendations, based upon the needs assessment as described in subdivision (21) of section 302.010, RSMo, shall be delivered in writing to the person with written notice that the person is entitled to have such assignment recommendations reviewed by the court if the person objects to the recommendations. The person may file a motion in the associate division of the circuit court, on a printed form provided by the state courts administrator, to have the court hear and determine such motion pursuant to the provisions of chapter 517, RSMo, after reviewing such assessment. The motion shall name the person or entity making the needs assessment as the respondent and a copy of the motion shall be served upon the respondent in any manner allowed by law. Such assessment and compliance with the court determination of the motion shall satisfy the provisions of this section for the purpose of reinstating such person's license to operate a motor vehicle. The respondent's personal appearance at any hearing conducted pursuant to this subsection shall not be necessary unless directed by the court.

8. The fees for the substance abuse traffic offender program, or a portion thereof to be determined by the division of alcohol and drug abuse of the department of mental health, shall be paid by the person enrolled in the program. Any person who is enrolled in the program shall pay, in addition to any fee charged for the program, a supplemental fee of sixty dollars. The administrator of the program shall remit to the division of alcohol and drug abuse of the department of mental health the supplemental fee for all persons enrolled in the program, less two percent for administrative costs. The supplemental fees received by the department of mental health pursuant to this section shall be deposited in the mental health earnings fund which is created in section 630.053, RSMo.

577.049. 1. Upon a plea of guilty or a finding of guilty for an offense of violating the provisions of section 577.010 or 577.012 or violations of county or municipal ordinances involving alcohol or drug related traffic offenses, the court shall order the person to participate in and successfully complete a substance abuse traffic offender program defined in section 577.001.

2. No person who has pled guilty to or been found guilty of an offense of violating the provisions of section 577.010 or 577.012 or violations of county or municipal ordinances involving alcohol or drug-related traffic offenses shall receive a final discharge from probation or parole by any court or board of probation and parole until such person has successfully completed a substance abuse traffic offender program defined in section 577.001.

3. The fees for the substance abuse traffic offender program, or [a] any portion [thereof] of either program, to be determined by the division of alcohol and drug abuse of the department of mental health, shall be paid by the person enrolling in the program. Any person who attends the program shall pay, in addition to any fee charged for the program, a supplemental fee of sixty dollars. The administrator of the program shall remit to the division of alcohol and drug abuse of the department of mental health the supplemental fees for all persons enrolled in the program, less two percent for administrative costs. The supplemental fees received by the department of mental health pursuant to this section shall be deposited in the mental health earnings fund which is created in section 630.053, RSMo.

577.054. 1. After a period of not less than ten years, an individual who has pleaded guilty or has been convicted for a first alcohol-related driving offense which is a misdemeanor or a county or city ordinance violation and which is not a conviction for driving a commercial motor vehicle while under the influence of alcohol and who since such date has not been convicted of any other alcohol-related driving offense may apply to the court in which he pled guilty or was sentenced for an order to expunge from all official records all recordations of his arrest, plea, trial or conviction. If the court determines, after hearing, that such person has not been convicted of any alcohol-related driving offense in the ten years prior to the date of the application for expungement, and has no other alcohol-related enforcement contacts as defined in section 302.525, RSMo, during that ten-year period, the court [shall] may enter an order of expungement. The effect of such order shall be to restore such person to the status he occupied prior to such arrest, plea or conviction and as if such event had never taken place. No person as to whom such order has been entered shall be held thereafter under any provision of any law to be guilty of perjury or otherwise giving a false statement by reason of his failure to recite or acknowledge such arrest, plea, trial, conviction or expungement in response to any inquiry made of him for any purpose whatsoever and no such inquiry shall be made for information relating to an expungement under this section. A person shall only be entitled to one expungement pursuant to this section. Nothing contained in this section shall prevent the director from maintaining such records as to ensure that an individual receives only one expungement pursuant to this section for the purpose of informing the proper authorities of the contents of any record maintained pursuant to this section.

2. No court shall expunge any alcohol conviction pursuant to subsection 1 of this section if the person applying for the expungement has any criminal, civil or administrative proceeding involving an alcohol-related traffic offense, including but not limited to offenses found in this chapter or chapter 302, RSMo, or a similar county or municipal ordinance, pending at the time of application for expungement. The court shall hold in abeyance its expungement order pending the outcome of such proceedings. If any of the proceedings result in a finding against the individual, the court shall deny the expungement.

577.600. 1. [Beginning January 1, 1996,] In addition to any other provisions of law, a court may require that any person who is found guilty of or pleads guilty to a first intoxication-related traffic offense, as defined in section 577.023, and a court shall require that any person who is found guilty of or pleads guilty to a second or subsequent intoxication-related traffic offense, as defined in section 577.023, [who was granted probation,] shall not operate [a] or own any motor vehicle [during the period of probation] unless that vehicle is equipped with a functioning, certified ignition interlock device as provided in sections 577.600 to 577.614 for a period of not less than one month from the date of reinstatement of the person's driver's license. In addition, any court authorized to grant a limited driving privilege [under] pursuant to section 302.309, RSMo, [may] to any person who is found guilty of or pleads guilty to a second or subsequent intoxication-related traffic offense, shall require the use of an ignition interlock device on all vehicles owned or operated by the person as a required condition of the limited driving privilege. Any person required to use an ignition interlock device shall comply with the court order, subject to the penalties provided by sections 577.600 to 577.614.

2. No person shall knowingly rent, lease or lend a motor vehicle to a person known to have had [his] such person's driving privilege restricted as provided in subsection 1 of this section, unless the vehicle is equipped with a functioning, certified ignition interlock device. Any person whose driving privilege is restricted as provided in subsection 1 of this section shall notify any other person who rents, leases or loans a motor vehicle to [him] such person of the driving restriction imposed [under] pursuant to this section.

3. Any person convicted of a violation of this section shall be guilty of a class A misdemeanor.

577.602. 1. [No court shall require the use of an ignition interlock device until it has made an affirmative finding that such a requirement will not impose any undue hardship by reason of the cost of the device or by reason of the difficulties associated with any necessary installation, testing, calibration, servicing or removal of the device. No court shall be required to require a person who is found guilty of or pleads guilty to a second intoxication-related traffic offense, as defined in section 577.023, to use an ignition interlock device as a condition of a limited driving privilege if such a device cannot be installed within fifty miles of the county seat of such person's county of residence; however, the court in such case may, in its discretion, require the use of such a device.

2.] If a court imposes a fine and requires the use of an ignition interlock device for the same offense, the amount of the fine may be reduced by the cost of the ignition interlock device.

[3. If the court requires the use of an ignition interlock device, it shall order the installation of the device on any vehicle which the probationer operates during the period of probation or limited driving privilege.

4.] 2. If the court imposes the use of an ignition interlock device on [a] any person [having full or limited driving privileges], the court shall require the person to provide proof of compliance with the order to the court or the probation officer within thirty days of this court's order or sooner, as required by the court. If the person fails to provide proof of installation within that period, absent a finding by the court of good cause for that failure which is entered in the court record, the court shall revoke or terminate the person's [probation or limited] driving privilege.

[5.] 3. Nothing in sections 577.600 to 577.614 shall be construed to authorize a person to operate a motor vehicle whose driving privileges have been suspended or revoked, unless the person has obtained a limited driving privilege or restricted driving privilege under other provisions of law.

[6.] 4. The person whose driving privilege is restricted pursuant to section 577.600 shall report to the court or the probation officer at least once annually, or more frequently as the court may order, on the operation of each ignition interlock device in the person's vehicle or vehicles. Such person shall be responsible for the cost and maintenance of the ignition interlock device. If such device is broken, destroyed or stolen, such person shall also be liable for the cost of replacement of the device.

[7.] 5. The court may require a person whose driving privilege is restricted under section 577.600 to report to any officer appointed by the court in lieu of a probation officer.

[8.] 6. The court shall require periodic calibration checks that are needed for the proper operation of the ignition interlock device.

577.604. The court shall require the use of a certified ignition interlock device [during the period of probation] if the person is permitted to operate a motor vehicle, whether the privilege to operate a motor vehicle is restricted or not, as determined by the court.

577.700. 1. The court may, as an alternative to the provisions of this section, either impound or immobilize all of the vehicles owned or operated by any person who pleads guilty to or is found guilty of a second or subsequent intoxication-related traffic offense. The definition of impoundment and immobilization shall be the same as the definition in United States Code, Title 23, Section 154, Part 1275.3. The period of impoundment or immobilization shall be for a period of not less than one month and shall only be implemented during the period of driver's license suspension.

2. If the court determines that imposition of impoundment and immobilization of all of the vehicles owned or operated by an offender would cause undue hardship to a family member or co-owner of the motor vehicle because the individual is completely dependent on the motor vehicle for the necessities of life, the court is authorized to suspend imposition of the impoundment or immobilization order. Such an exception may be issued for the following reasons:

(1) To allow the family member or co-owner to travel to or from a place of employment;

(2) To allow the family member or co-owner to travel to or from places to obtain the basic necessities of life; and

(3) Any exceptional circumstances relating specifically to the offender's motor vehicle.



Missouri House of Representatives