PowerPoint - the Missouri Bar

HB1695 and HB1540 Legislative Update 2010 The Missouri Bar Solo and Small Firm Conference

Jason Lamb Office of Prosecution Services

HB1540 Infractions  

556.021 Was amended in the previous session as follows:    

Civil action Preponderance of the evidence Bench trial only Judgment for plaintiff

556.021 

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 

Subsections 3 to 6 of the statute are new and take effect on January 1, 2012

Subsection 3 

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 

Court may also issue a failure to appear warrant

Limited Driving Privilege  

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 

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  

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 

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  

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  

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 

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 

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