Missouri bill would criminalize refusal to take breath test

People often hear that they should refuse to take the breath test if they are arrested for a DWI. Unfortunately–in the case of a simple first offense DWI–that belief will frequently result in worse results than if a person is convicted of the DWI. Refusal to blow will probably result in a one year revocation of that person’s Missouri drivers license.

A bill in the Missouri legislature takes a “refusal” to blow to a new level. SB 780, sponsored by Sen Matt Bartle, makes refusing to submit to chemical testing a separate crime, equivalent to a first-time DWI

In view of the heavy administrative penalty (one year revocation) already on the books, I am not certain how useful this provision will be. It creates a bizarre situation with regard to other statutes that still remain in effect. Section 577.041 requires the arresting officer to allow a DWI suspect twenty minutes in which to contact an attorney about whether to take the breath test.

It seems odd to specifically provide extra time for a suspect to call a lawyer to ask if he should commit a crime. This places the attorney in a situation of having to violate ethical rules if he makes any specific recommendation. I can imagine getting a phone call at 3:00 am:

Me: What can I do for you?

Suspect: I’m at the police station and I want to know if I should take the breath test? I got arrested for DWI.

Me: You are asking me if you should commit another crime?

Suspect: The cop said I could call a lawyer to see if I should blow.

Me: OK, here’s the deal. I can’t advise you to commit a crime. I could advise you to obey the law and take the test, but I can’t do do that either, because it could make your situation worse. However–wink, wink–If you do take the test, X will happen. If you don’t, Y will happen. Good luck.

This bill is hardly necessary, and–as the above shows–creates difficulties within the existing law.  It needs to fail.


Proposed Missouri law would nullify federal gun laws

A proposed Missouri law pokes a (trigger) finger in Congress’ face. The proposed law, known as the Missouri Firearms Freedom Act, HB 1230, was pre-filed on December 1 by Rep. Cynthis Davis of O’Fallon.

The law is a direct challenge to the authority of the US Congress and would specifically invalidate federal firearms laws. The bill, which cites the 9th, 10th & 2nd amendments, as well as the US Commerce clause, declares that the federal government has no authority to regulate the sale, transport and use of personal firearms (rifles, shotguns and handguns) which are manufactured in–and remain in–Missouri.

The logic of the bill is that many federal firearms laws are based on federal interstate commerce powers. Therefore, if a gun does not enter into interstate commerce, Congress ought to have no authority to regulate it.

That is a fair and reasonable interpretation, but one that was abandoned almost 70 years ago when the US Supreme Court–in the case of Wickard v. Filburn–held that federal laws regarding wheat farming applied to any wheat, grown anywhere in the United States, whether it was sold across state lines or not.

This applied even if the farmer ate the wheat in his own kitchen.


As silly as this sounds, the same principle means that a handgun produced [and remaining] in Missouri is deemed to be involved in interstate commerce. Obviously, passage of this proposed legislation will set up a confrontation between the federal government and some Missouri citizen bold enough to violate federal gun laws based on the new state law. Good luck to that guy.

I didn’t see any provision in the bill claiming that Missouri would in any way defend its citizens against an illegal federal prosecution.

Montana and Tennessee have passed similar laws. Here’s a CNN piece:


Many other state legislatures will likely take up a version of the Firearms Freedom Act in the coming year. Even so, the Federal Bureau of Alcohol, Tobacco, Firearms and Explosives has declared such laws have no effect on federal enforcement.

The question is whether the US Supreme Court will hold to the Wickard v. Filburn interpretation of the interstate commerce clause. If the commerce clause were to be re-interpreted in a more common sense manner, it would open the door to a massive rollback of federal control over the people and the states. For more information, go to the website Firearms Freedom Act.



New law would make Missouri drug dealers easier to find

Randy England- criminal defense lawyerSuppose someone is not an illegal drug user, but would like to become one. None of his friends sell drugs. Perhaps none of them can recommend a reliable drug dealer. Where can he turn?

Missouri House Bill 1242, prefiled by Cassville Representative David Sater, would direct the Highway patrol to create and maintain a public database of drug dealers. Since selling illegal drugs is … well … illegal, Missouri has no licensing scheme to assure consumers that they are patronizing knowledgeable, experienced drug dealers. Under HB 1242, consumers would finally have some assurance that they are not dealing with inexperienced providers.

In fact, only sellers who have at least one conviction (or finding of guilty) for distributing illegal drugs will be placed on the approved list of drug dealers. The Highway patrol will provide the dealer’s name, date of birth, what drug offenses they committed along with any other information the patrol determines is necessary to be able to identify the person.

With such information at hand, consumers should find it easier to find a drug dealer in their area.

Drug dealers wishing to stay on the official list will have to get a new conviction for drug dealing at least every seven years, which should not present any undue hardship.


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New DWI laws could have “unintended consequences”

After the governor’s November DWI summit, we can expect new laws that promise to crack down on repeat DWI offenders. Oddly, the news reports seem to suggest a need–not for a crackdown on drunk drivers–but rather a crackdown on courts and prosecutors.

One of the biggest problems cited relates to the many arrested drivers who refuse to give a breath sample to determine their blood alcohol content. The law already requires a one year license revocation for such a refusal, but apparently prosecutors are being blamed for allowing DWI offenders to keep their licenses in exchange for guilty pleas on the underlying criminal offense.

Reports also cite prosecutors and judges giving probation to DWI offenders, thereby avoiding any conviction from appearing on a person’s record. This seemingly ignores recommendations of the federal goverment not to permit such practices.

Changes in the law may make it a crime to refuse to give a breath sample. Other changes could prevent prosecutors from plea deals which would keep a DWI from appearing in state and national databases. Another possible change is to make it a more serious crime to drive with a blood alcohol higher than .15% (the current level is .08%).

It turns out that some prosecutors are not enthusiastic about changing the law, citing unintended consequences of the new laws.

Prosecutors know that if their hands are tied by uncompromising rules, it will change the way they do business. This is because criminal cases do not always appear in black and white. Shades of grey are the norm.

When the prosecutors are prohibited from making reasonable compromises, fewer DWI charges will be filed. Either that or many cases will end up dismissed or lost at trial.

Look for a get-tough bill to be filed soon in the Missouri legislature.


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Missouri rivers still safe for jello shots, mardi gras beads and (maybe) coolers

For those who were concerned that the legislature would be putting a crimp on Missouri river partying, it seems that the bullet may have been (mostly) dodged. The original Senate Bill 2 would have outlawed all plastic or styofoam coolers, beer bongs, alcohol in containers larger than a gallon, jello shots, and the distribution of mardi gras beads on a river. See my earlier post for more.

The bill was amended & passed and awaits the governor’s signature as part of House bill 62. In passing the bill, the legislature removed the prohibition on mardi gras beads and jello shots, but still makes it a crime to have beer bongs and alcohol in containers larger than 4 gallons.

Interestingly, the part of the bill that would effect most river recreation is the wording of the prohibition on coolers.

The original bill pretty much banned coolers with this language: “No person shall possess foam or Styrofoam, polypropylene, expanded polypropylene or polystyrene coolers on or within fifty feet of any river . . .”

As passed, House bill 62 says “No person shall possess expanded polypropylene coolers on or within fifty feet of any river . . .” (note: would not include Mississippi, Missouri or Osage rivers)

I am not a chemist, but I do not think most picnic coolers are made from “expanded polypropylene” (plain polypropylene, yes, expanded, no).

Perhaps the bill was meant to outlaw coolers made from “expanded polystyrene,” which we generically call styrofoam, as in coffee cups, coolers and packing peanuts.

Of course it does not matter what the bill was meant to outlaw. It only matters what it says.

If it outlaws “expanded polypropylene” then one could not be arrested for possession of a styrofoam cooler made from polystyrene. (This assumes that the deputy arresting you knows more about plastics than the legislator who wrote the amended bill).

Since this bill is supposedly for the benefit of everyone, maybe it is best if our legislature goofed this time. After all, it’s not just drunks that take a cooler with them on the river. Everyone does.

Like I said, I am not a chemist, but I know the governor has a few of them working for him. Maybe he could ask one of them about this before he signs HB62.



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