Driver’s Right to An Independent Chemical Test in Missouri DWI Cases

The Driver’s Right to An Independent Chemical Test in Missouri DWI Cases

A little known but important fact that most drivers are not aware of in Missouri DWI cases is that they have a right to an independent chemical test at their own expense (separate from the police test at the station—usually the police breath test) in certain instances. This is an important right, but a limited one. You have to know the rules, or you are not going to get your independent test.

Pursuant to RSMo. 577.020, a driver has a statutory right to have “a physician, or a qualified technician, chemist, registered nurse, or other qualified person, at the choosing and expense of the person to be tested, administer a test in addition to any administered at the direction of a law enforcement officer.”

It is a commonly known biological fact that the amount of alcohol in your bloodstream, which is determinant of intoxication and hence of your guilt or innocence on any Missouri DWI charge, is soon dissipated by your body’s natural processes.

Thus, an objective test of sobriety, to be probative, must be administered as quickly as possible after the initial arrest. 

The first thing that I would point out to Missouri drivers is you must immediately be aware of the fact that you do not get a choice on which chemical test to take if you are arrested for DWI in Missouri.

If the police initially request a breath test, you must take the breath test. If they initially request a blood test, you must take a blood test. The police also have the right to request any two chemical tests they choose, and you do not have the right to refuse either test if two are requested, or you will be deemed to have refused, and face having your driver’s license suspended, even if you took one of the two requested chemical tests. This is not to say in certain cases that you should not refuse any chemical test. Know your rights!

If you have been arrested for DWI, and the officer asks you to take a breath test after reading you a proper implied consent warning and you refuse this test by asking for a blood test instead, you will lose your right to the independent test, and you will also be deemed to have “refused” a chemical test by refusing the breath test. Kiso v. King, 691 S.W.2d 374 (Mo. App. W.D. 1985); State v. Brown, 804 S.W.2d 396 (Mo. App. 1991) (If the officer requests one type of test and the subject refuses, but volunteers to take another type of test, the subject’s conduct still constitutes a refusal).

In short, to preserve your right to an independent chemical test in a Missouri DWI case, you must first submit to the chemical test requested by the officer, and then ask for your independent test (preferably a blood test).

You need to realize that the Implied Consent warning that is read to you by the police when you are arrested for DWI which advises you of your rights to take or refuse a chemical test does not provide any information about the right to an independent chemical test.

If you do not know your rights, and do not know to ask for an independent blood test after you have blown for the police they do not have to advise you of your rights or give you the blood test! Know your rights!

You should also be aware that there is hardly any caselaw interpreting this independent chemical test provision in the Missouri statute regarding requirements the police have to follow when you request an independent test. The statute also further states that: “The failure or inability to obtain an additional test by a person shall not preclude the admission of evidence relating to the test taken at the direction of a law enforcement officer.”

The only Missouri case on point at the time of this writing is Pierce v. Director of Revenue, 51 S.W.3d 888 (Mo. App. W.D. 2001).

In that case, the driver wanted to have a blood test instead of the breath test that the police requested after he was arrested for DWI. He went ahead and took the breath test requested by the police and tested above the legal limit, but then continued to request a separate blood test. The police did not provide him his requested independent test, but they did released him 45 minutes later. The court in the Pierce case held that releasing him in a timely fashion did not deny him an independent chemical test, nor did it deny him getting a independent chemical test on his own.

POLICE DEPARTMENT POLICIES REGARDING “MANDATORY HOLDS” IN MISSOURI DWI CASES

While the Pierce case seems to indicate that if the police release you in a timely manner, you have to go get an independent test yourself or you waive the right, many police departments in Missouri DWI cases have a policy of a “mandatory hold” in all DWI cases.

This usually means that if someone is arrested for DWI, the person will be held for a set number of hours if there is a mandatory hold policy in place by that police department.

The imposition by the police of a mandatory hold policy on you when you have requested an independent blood test after submitting to the requested police breath test clearly imposes a material obstacle in the path of your ability to obtain an additional test of your blood or breath, thereby denying your statutory right under RSMo. 577.020 to an additional test.

The admissibility of breath tests in Missouri is conditioned upon the requirement that the tests “shall” be performed in compliance with section 577.020 to 577.041. Reed v. Director of Revenue, 184 S.W.3d 564 (Mo. 2006). A failure to comply with the provisions of sections 577.020 to 577.041 means that the chemical analysis of the police test you consented to is not admissible in civil proceedings to suspend or revoke a driver’s license. Reed, supra.

In addition, you have a constitutionally protected property interest in your driver’s license and its deprivation or suspension by the government implicates the Due Process Clause. As the Missouri Supreme Court recognized in Dabin v. Director of Revenue, 9 S.W.3d 610 (Mo. 2000):

“Procedural due process imposes constraints on governmental decisions which deprive individuals of ‘liberty’ or ‘property’ interests within the meaning of the Due Process Clause of the Fifth or Fourteenth Amendment.” Mathews v. Eldridge, 424 U.S. 319, 332, 47 L. Ed. 2d 18, 96 S. Ct. 893 (1976).

Due process applies to the suspension or revocation of a driver’s license by the state. “Licenses are not to be taken away without that procedural due process required by the Fourteenth Amendment.” Dixon v. Love, 431 U.S. 105, 112, 52 L. Ed. 2d 172, 97 S. Ct. 1723 (1971). Id. at 614.

Your right of due process under Article I, Section 10 of the Missouri Constitution, and under the 14th Amendment to the United States Constitution, is denied if you are placed in a mandatory hold after properly invoking the right to an independent blood test after submitting to a police chemical test when arrested for DWI. 

The purpose of due process is to prevent fundamental unfairness, and one of its essential elements is the opportunity to defend. Due process of law applies to actions by the government to suspend your drivers license. Dabin, supra.

While there are no published decisions in Missouri on this issue besides Pierce, if you are placed in a mandatory hold after complying with the requirements of the statute in requesting an independent blood test, you should still be allowed at least the use of a phone to attempt to arrange for someone to come administer the independent test while you are in custody. This means a meaningful opportunity to get the test, and not less, to comply with due process.

Despite Missouri not yet having cases on point for this issue, there is respectable authority in other states for the proposition that you are deprived of due process of law when you are denied a reasonable opportunity, under such circumstances, to obtain an additional blood or breath test at his own expense. See People v. Burton, 163 N.W.2d 823 (Michigan 1968); State v. Munsey, 127 A. 2d 79 (Maine 1956); In re Newbern, 175 Cal App 2d 862 (Cal. 1959); and In re Koehne, 356 P.2d 179 ( Cal. 1960).

To the same effect, see In re Martin, 374 P2d 801, 803 (Cal. 1962), in which the court declared:

“But in no event can duly constituted authority hamper or interfere with efforts on the part of an accused to obtain a sampling of his blood, without denying to him due process of law. We are persuaded to such conclusion in any instance where the conduct of the authorities, whether through affirmative action or by the imposition of their rules and regulations, imposes any material obstacle in the path of the accused. It is sufficient if, in seeking to establish the fact of the alcoholic content of his blood, the authorities, by their actions or regulations, frustrate his reasonable efforts designed to produce probative evidence.” Id. Accord, see State v. Snipes, 478 S.W.2d 299 (Mo. 1972).

Under such circumstances, a qualified Missouri DWI attorney should object to the admission of the police chemical test into evidence on the grounds that the actions of the police, combined with the policies of the police department or the local judge in imposing a mandatory hold policy that denies the statutory right to an independent chemical test when properly requested, serves to deny your right of due process under Article I, Section 10 of the Missouri Constitution, and under the 14th Amendment to the United States Constitution.