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​If you are facing a Driving While Intoxicated charge (DWI), or sometimes referred to as DUI (Driving Under the Influence), call James P. Feely, Jr.


In as little as 15 days from your arrest date you can lose your driving privileges if you don't take action. 

When you are arrested for DWI, it will lead to a criminal charge against you, and a Missouri Department of Revenue administrative action against your driving privileges in most instances. 

The criminal charge will generally take place in either a state or municipal court, where you will address the DWI charge and any companion tickets given at the same time, such as speeding, improper lane usage, etc.

In the criminal charge the government must prove that you "operated" a motor vehicle "under the influence" of alcohol, some type of drug, or a combination of both. 

The Missouri statutes define "intoxicated" as:

(13)  “Intoxicated” or “intoxicated condition”, when a person is under the influence of alcohol, a controlled substance, or drug, or any combination thereof;


Driving while intoxicated investigation

When a person is investigated for a DWI/DUI, on of the first things the police will do is ask the driver to step out of the car and participate in field sobriety tests. 

These are generally the one-leg stand and walk and turn test.  Officers may ask the driver to attempt other "tests", such as reciting the alphabet in a certain manner.

The tests utilized that are approved by the National Highway Traffic Safety Association (NHTSA), must be performed according to strict protocol to be considered properly administered.

In some cases, defense attorneys have been successful in fighting DWI cases due to faulty SFST instructions/performance by the investigating officer.

In some jurisdictions, the arresting officers have been instructed not to perform any SFST on the driver, presumably in hopes it will prevent a skilled DWI attorney from making the police officer look bad on cross-examination for not following the NHTSA rules properly.


If your blood alcohol is tested and the result is .08 or higher, it will create presumption of intoxication. 

This means that if your blood alcohol level tests above the limit, the government can use that fact to argue you were legally intoxicated. 

You are free to present evidence to rebut this presumption at trial. 

This might be accomplished by evidence that you passed your field sobriety tests, are able to show you were not slurring your speech, and that you could walk without swaying or wobbling.

However, if there is no video evidence or other independent evidence of you passing the field sobriety tests, it will force you to rely on the police report and officer testimony to prove such things. 

This can be difficult if the arresting officer is insisting that you appeared to be highly intoxicated, failed all of your field sobriety tests, had a strong smell of alcohol and had slurred speech. 

In such prosecutions, it will be up to your attorney to demonstrate that the officer made mistakes in how they investigated your case, and that they inaccurately documented events in their investigation of you.



If a person refuses a breath or blood test and the police don't seek a warrant to obtain a forced blood draw, then the prosecutor will be forced to pursue their case without a breath or blood alcohol test result. 

It is admissible at a DWI trial that the driver refused the breath test request by the arresting officer. 


​In prosecutions without a breath or blood test result, focus will be given to the the officer's observations regarding the driver's behavior and appearance.



If a person refuses to give a breath or blood sample to the arresting officer, the officer can apply for a warrant to obtain a forced blood draw from the driver.

This requires a judge's approval, even in the middle of the night.  There is always a judge on call to handle such situations.

In some jurisdictions the police only seek a warrant for a blood draw in potential felony DWI cases or those that involve an accident with injuries.

In other jurisdictions the police may seek a warrant for a blood draw in DWI arrests that will only yield misdemeanor or municipal (night court) charges. 

Generally, in larger municipalities the police don't have time to seek warrants on every DWI case where the driver refuses to give a breath sample.


There is a also a criminal charge called BAC, or driving with an excessive blood alcohol content. 

For the government to prove that an individual drove with an excessive blood alcohol, the prosecutor will rely on the test result of the blood alcohol level of the driver's breath or blood. 

Whether or not the driver appears or behaves like an "intoxicated" person is not an "element" (something that must be proven beyond a reasonable doubt) in the government's case in a BAC action. 

In fact, a person could appear somewhat "sober" yet still be convicted of a BAC if their blood alcohol level is .08 or higher while operating a motor vehicle. 

A prosecutor might decide to charge a person with BAC instead of a DWI in a situation where the driver had a blood alcohol level that was over the legal limit, but for some reason displayed few symptoms of intoxication. 

Perhaps such a situation could arise where the driver was a regular, heavy drinker who had a high tolerance for alcohol, and can function relatively well with a blood alcohol level that exceeds the government's blood alcohol limit of .08. 

In such a case the prosecutor might have hard time convicting such a driver of DWI, but could receive a conviction for a BAC charge if the driver's blood alcohol level can be shown to have exceeded the legal limit at the time of driving.

Although very rare, it is technically possible for a conviction for DWI when a person's blood alcohol level is below the legal limit. 

For example, if a person had a very low tolerance for alcohol (gets drunk on low amounts of alcohol), they could be convicted for DWI if even though had a blood alcohol of less than .08.   

For a conviction with a sub .08 blood alcohol level, the driver would have had to display multiple symptoms of gross intoxication that were observed by the police officer and fully documented. 

So in a nutshell, for the government to prove a case of DWI against an individual, they most prove that the person was operating a motor vehicle while intoxicated. 

For a BAC case they must prove a person was operating a motor vehicle with an excessive blood alcohol level (.08 or higher). 


If the police believe that a driver is intoxicated but don't smell any alcohol on them, they will suspect that the driver is under the influence of some type of drug. 

Under Missouri law, the police can request that you take a blood or urine test if they arrest you for operating a motor vehicle under the influence of a drug. 

If the police officer requests that you take a blood test after an arrest for DUI and you refuse to take the test (give blood sample), you will suffer the same one year revocation that a person would face for refusing an alcohol breath test.

​Although the police can request a urine test in a DWI or DUI investigation, they are rarely requested because they don't show current impairment, only past usage.

A blood test shows the level of drugs in the bloodstream at the time the sample was drawn.

Urine tests show what drug metabolites were excreted (via urine) from your body.

A metabolite is a substance that is created after a drug is "metabolized" in your system. 

Drugs that are ingested will result in specific metabolites being created by the body that are specific to each particular drug ingested.

Some metabolites will stay in the system for long periods, like cannabis (weed), which can stay in your system for as long as 90 days for really heavy users. 

The THC metabolites are fat soluble, and will be stored in your fat tissue and slowly released over time.

Other drugs like cocaine and other stimulants have metabolites that are water soluble and are secreted in a matter days instead of weeks. 


Missouri does not have a set standard that dictates what exact amount of drugs in your system creates a presumption of intoxication. 


This is unlike alcohol DWI cases, where a .08 blood alcohol content is the set legal standard for presumption of intoxication.  

Some police officers receive specialized training in spotting a person who is  under the influence of drugs.


This type of police officers is referred to as a Drug Recognition Expert (DRE).

If you receive a DWI based on drugs and consent to the blood test and a drug is detected, there is no administrative action similar to when you test .08 or higher for alcohol. 


This is true even if you had an extremely high level of the drugs in your blood.

At a trial for DWI, the prosecutor would need an expert witness to interpret the blood test result and drug levels it showed, and how that could have affected the driver.

The defense would be free to offer their own expert witness to argue that the test result doesn't show the driver operated under the influence.

DUI cases are generally more difficult for the prosecutors to win than alcohol cases.


Most people think they know what it means to be "driving while intoxicated". 

But you might be surprised to learn that what you consider to be "driving" and what the law and courts consider to be "driving" are two separate things. 

To obtain a conviction for DWI or BAC, the government doesn't actually need to prove a person was "driving while intoxicated", but instead must prove a person was "operating a motor vehicle" while intoxicated, or with a BAC of .08 or higher, respectively. 

Driving and operating might sound like they are the same thing, but as you will see there is a difference between "driving" and "operating" a motor vehicle according to the law. 

The way the courts have defined "operating" is somewhat surprising to most people. 

The courts have chosen to look at the issue of "control" of the vehicle versus driving the vehicle, when deciding on how to define the term "operation".

It has been found by the courts that if a person is sitting in the driver's seat with the ignition on, they are "operating" the vehicle because they are in control of the vehicle. 

This is true even if the driver was asleep at the time, with the car in park, with the vehicle in a safe place off of the roadway. 

This type of situation happens frequently at places like rest stops and truck stops.  The driver may have left the vehicle running to heat the interior while they took a nap or were resting.   

To most people it would seem absurd that a person could be arrested for a DWI when their vehicle is parked safely off of the road with the engine running, even if the person in the driver's seat happens to appear under the influence of alcohol or a drug.

However, the police will not be sympathetic and will arrest the person they find in such a situation if they detect the alleged use of alcohol or drugs on the part of the "driver".

Police officers receive awards and recognition for their work in arresting alleged drunk drivers. 

Groups like MADD (Mothers Against Drunk Driving) and others keep track of the statistics and follow the number of DWI arrests made by local law enforcement officers. 

If the police catch you and believe you are operating a motor vehicle in an intoxicated condition, they will arrest you.   

A DWI or BAC offense can have devastating effects on your life.


Not only will you face a possible jail sentence and large fines, but you may also lose your driving privileges for a substantial amount of time.


For a driver to be charged with a felony DWI offense in Missouri, they must have two or more prior DWI or BAC guilty pleas or convictions. 

The government can use prior DWI offenses even where the driver received an SIS (suspended imposition of sentence) and were able to keep the DWI offenses off of their record. 

Prior DWI guilty pleas and convictions from other states can also be used to enhance a current DWI to felony status.

The government must provide adequate proof to the judge that the driver had received such prior convictions or guilty pleas to be able to use them at trial. 

The penalties for felony DWI cases depends on which level of felony it is filed. 


This will depend on how many prior DWI guilty pleas and convictions a driver has received in their lifetime.


A DWI checkpoint is where law enforcement set up at a particular location, and section-off a lane or two (or three) of traffic, to divert traffic to a specific location.

This is done so that each motorist can be stopped and spoken to by the officers, in an effort to find those who are driving under the influence of alcohol or drugs.

Sometimes the officers will stop every other car, or every third car, instead of stopping every vehicle.

There are certain rules that apply specifically to DWI checkpoints.  This is because stopping a vehicle without any suspicion or probable cause of alleged wrongdoing is per se unconstitutional.

For DWI checkpoints to be constitutional, certain protocols must be set up in advance by the police in writing, which are supposed to remove the officer's exercise of discretion with respect to which cars are stopped/drivers spoken to.

For example, sometimes the protocols will call for every other car to be stopped.  Say that during this checkpoint the officer sees a car come through that was not to be stopped due to the "every other car rule", but because the driver was a young person with friends in the car, the officer decides to stop them anyway. 

This stop would be in violation of the pre-set protocols. The stop would be in violation of the law because the officer exercised discretion during the checkpoint and did not follow the pre-set protocols put in place for that checkpoint.

​​The use of DWI checkpoints will most likely decline over time in Missouri, because special funding for such checkpoints has been removed. 

It seems the trend in the future will be for what are called DWI "saturation patrols" instead.


​The Missouri Department of Revenue action will be for a suspension or revocation of your driving privileges for having a blood alcohol content of .08 or greater, or a revocation of your driving privileges for refusing the police officer's request that you submit to a blood alcohol test under proper circumstances.

This "administrative" portion of a DWI arrest is independent from the DWI "criminal" case, even though it is based on the same incident.  

If a person's breath or blood tests over the legal limit for alcohol, they will face an administrative hearing to determine if they should receive a suspension or revocation of their driving privileges. 

If a driver is alleged to have refused the breath or blood test, they will face a one year revocation of driving privileges.  If the driver wants to challenge the revocation they will have to file a Petition for Review in the county of arrest within 30 days of the arrest. 

It is advisable for a driver facing any type of administrative action against their license to contact Mr. Feely immediately.   

Believe it or not, it is possible to lose your driving privileges under the "administrative" portion of a DWI arrest, even if you prevail on the "criminal" charges in court, and vice versa.  

The law allows you to defend yourself and challenge the "administrative" loss of driving privileges, but there are specific requirements and time limitations that must be followed.   


There are ways to win in your administrative hearing, but you only have 15 days to request a hearing for a BAC administrative action.

​If you are under 21 years of age, you face possible "abuse and lose" laws that can be more severe than those for adult defendants if arrested for DWI.   

If there are any "companion" charges to the DWI, such as speeding or improper lane usage, Mr. Feely can help you with those traffic tickets as well.     


Attorney James P. Feely Jr., has successfully represented hundreds of clients with DWI charges as well as other criminal defense matters during his 30 years of practicing law.

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