HB1695 and HB1540
Legislative Update
2010
The Missouri Bar
Solo and Small Firm Conference
Jason Lamb
Office of Prosecution Services
HB1540
Infractions
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556.021
Was amended in the previous session as
follows:
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Civil action
Preponderance of the evidence
Bench trial only
Judgment for plaintiff
556.021
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Problems with this version:
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Gave no direction as to whether infractions
could be filed with a criminal action
Gave no direction as to how to collect a
judgment
Gave no direction on whether a FTA warrant
could be issued
Infraction Fix
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Returns statute to status quo
Emergency clause, went into effect upon
signing
Subsections 1 to 2
New Provisions
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Subsections 3 to 6 of the statute are new
and take effect on January 1, 2012
Subsection 3
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Specifies that procedures for infractions
shall be the same as a misdemeanor
Subsection 4
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Specifies that court may issue a default
judgment for court costs and fines for the
infraction
May be enforced as other default
judgments
Defendant may file a motion to set aside
default judgment within 6 months of date
of mailing notice of entry and must show
good cause
Subsection 5
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Court may also issue a failure to appear
warrant
Limited Driving Privilege
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302.309.3(9)
“(9) A DWI docket or court established
under section 478.007 may grant a limited
driving privilege to a participant in or
graduate of the program who would
otherwise be ineligible for such privilege
under another provision of law. The DWI
docket or court shall not grant a limited
driving privilege to a participant during his
or her initial forty-five days of
participation.”
DWI Courts
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Codifies DWI court or DWI docket
Participant must PLEAD guilty
Cannot be used if found guilty by a trial
Participant must have BAC of .15 or higher
(precludes refusal cases in which blood was not
taken), OR
Participant must have one or more intoxicationrelated traffic offense (577.023), OR
Participant must have two or more previous
alcohol related contacts (302.525)
Jurisdiction
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Not cognizable in municipal court if
defendant has been convicted, plead
guilty or been found guilty of:
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Two or more previous intoxication-related
traffic offense under 577.023 OR
Has had two or more previous alcohol-related
enforcement contacts under 302.525
Search Warrants
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542.727.11
“11. The application or execution of a
search warrant shall not be deemed
invalid for the sole reason that the
application or execution of the
warrant relies upon electronic
signatures of the peace officer or
prosecutor seeking the warrant or
judge issuing the warrant.”
Possibility of SIS for First Time
Offenders
In circuit where DWI court or DWI docket under
478.007 OR other court-ordered treatment program is
available:
Defendant with .15 BAC or higher may not receive an
SIS unless the defendant participates and successfully
completes program
First time offender may still get SIS if BAC is less than
.15, but probation still must be two years
Early discharge is not allowed under the statute if
defendant is granted an SIS
Applies to both DWI and BAC
Minimum Mandatory Sentence
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If no DWI court or DWI docket or other
court-ordered program is available in the
circuit and defendant is not granted SIS
then:
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Minimum 48 hours imprisonment if BAC is .15
to .20
Minimum 5 days imprisonment if BAC is
greater than .20
Applies to both DWI and BAC
Prior Offenders
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One prior within 5 years of current offense
Prior offender must serve minimum of 10
days imprisonment UNLESS
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They perform at least 30 days of community
service under supervision of court with
recognized community service program OR
They participate in and successfully complete
a DWI court or other court-ordered treatment
program, if available
Persistent Offenders
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Two priors within a lifetime
Must serve a minimum of 30 days
imprisonment unless
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They perform 60 days of community service
under supervision of the court OR
They participate in and successfully complete
DWI court or other court-ordered treatment
program, if available
Evidence of Priors
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Search of records from MULES
Criminal history records from the central
repository
Records from DWITS
Certified driving records from DOR
(codifies State v. Thomas, 969 S.W.2d 354
(W.D. 1998)
Elimination of 90 minute rule
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577.039. An arrest without a warrant by a law
enforcement officer, including a uniformed member of
the state highway patrol, for a violation of section
577.010 or 577.012 is lawful whenever the arresting
officer has reasonable grounds to believe that the person
to be arrested has violated the section, whether or not
the violation occurred in the presence of the arresting
officer [and when such arrest without warrant is made
within one and one-half hours after such claimed
violation occurred, unless the person to be arrested has
left the scene of an accident or has been removed from
the scene to receive medical treatment, in which case
such arrest without warrant may be made more than
one and one-half hours after such violation occurred].
None Shall Be Given
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Eliminates phrase “none shall be given” in
302.70 and 577.041
302.750. 1. If a person refuses, upon the
request of a law enforcement officer pursuant to
section 302.745, to submit to any test allowed
under that section, [then none shall be given
and] evidence of the refusal shall be admissible
in any proceeding to determine whether a
person was operating a commercial motor
vehicle while under the influence of alcohol or
controlled substances.
None Shall Be Given
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577.041. 1. If a person under arrest, or who has
been stopped pursuant to subdivision (2) or (3)
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, 565.060, or
565.082, RSMo, or section 577.010 or 577.012.
Expungements
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Limits ability of individual charged with
second DWI offense to rush to the
courthouse and get the first conviction
expunged prior to adjudication of the
second one
Eliminates the ability of the defendant to
turn a DWI prior offender into a DWI first
offense and escape minimum mandatory
sentence of 10 days and bar against SIS