Interviewer: What if the police officer believes that someone has been smoking marijuana, for instance? Will those same tests apply? What are they going to do in that situation? What are they going to do to determine if that person is under the influence?
Kevin Roach: In Missouri, if you’re suspected of being under the influence of marijuana or any other drug, they will ask you to consent to a blood draw. Just like a breathalyzer, you have the right to refuse the blood draw. However, an officer could obtain a warrant for a blood draw, in which case you would be required to comply. I don't see that very frequently, but technically, they can't force you to give blood just like they can't force you to blow into a Breathalyzer. They can, however, wake up a judge in the middle of the night and get a warrant for your blood if they think that you're under the influence.
If you refuse the blood and there is no breath evidence, then that becomes a difficult case for the state to win. The officer can say, "I smelled alcohol and his eyes were glassy," but unless the driver admits to smoking marijuana, or being on some sort of prescription or other type of drug, it's going to be a tough case for the state to win for a number of reasons.
Interviewer: I would ask the same question with prescription medications. Is it still a blood draw over those?
Kevin Roach: Yes, they could draw blood for confirmation of prescription meds. That is typically what they do because obviously the Breathalyzer detects only alcohol. It doesn't detect other drugs in your system. I see a lot of times where people would consent to the blood draw. They don't know that they can refuse it.
A lot of times, the officer will say, "If you don't consent to this, then you're going to lose your license for a year," and most people will agree or consent to the blood draw because they don't want to lose their license, but that's just the officer trying to make it easy for the prosecutor to make the case because the best thing you can do is refuse that test. Most people haven't been in the situation before and don't know any better, and so they just go ahead and consent to it.
Penalties of Refusals
Interviewer: If someone refuses even a blood draw, what is going to happen to their license? What precautions are going to be happening if someone refuses anything?
Kevin Roach: It depends on whether it's your first, second, or third offense but typically, on a first offense case here in Missouri, you can lose your license for up to a year if you refused the Breathalyzer. After 90 days of that year, you're eligible for a limited driving permit. However, you can get around the year's suspension if you retain an attorney, and we can file what's called a Petition for Review with the circuit court, and that stops the suspension from going forward. Usually, you can just get the suspension. In St. Louis County, for instance, on a first offense DUI you can normally get the driver's license case dismissed upon completion of community service.
St. Charles County also does that same confession policy, as well as a lot of the other surrounding counties here in the metro area. They do that same policy for first offense DUI refusals. That's really misleading when the officer says you're going to lose your license because basically, yes, you lose your license for a year if you didn't do anything – but if you hire an attorney, you can avoid the suspension.
Kevin J. roach is a St. Louis DWI defense attorney who has defended thousands of DWI and DUI cases in the St. Louis Metro area. Call us today at (636) 519-0085 or (866) 519-0085 for your Free Consultation!