Temporary Permits with Administrative Actions

With an administrative suspension for failing the BAC test the driver should be eligible for a temporary driving permit while the administrative case is pending, if they are otherwise eligible. This, however, is only a temporary permit that allows the driver to drive until there is a decision with the administrative case. If the driver loses the administrative case the driver's driving privileges will be suspended. The driver's license is suspended or revoked based on the driver's prior five-year driving record. If convicted or suspended during the past five years for an alcohol-related law enforcement contact, the person is revoked for one year, and if not, a 30-day suspension is imposed. The 30-day suspension is followed by a 60-day restricted driving privilege. The effective date of the suspension or revocation is 15 days after the final order of the hearing officer is mailed from the Department of Revenue.[1] The Department of Revenue will issue the 60 day restricted permit after the driver has served the first 30 days of the suspension and files proof of insurance (SR-22) with the department of revenue. In addition, the driver will have to file proof of installation of an Ignition Interlock Device (IID) if they have more than one alcohol related enforcement contact on their driving record.

As discussed above, it is always advisable to contact the Department of Revenue and ask them what will happen to your client's driving privileges if they lose the administrative action. Sometimes it is necessary to retain the services of a court reporter or even an expert witness for the administrative hearing. If the client is facing a potential one year revocation versus a 30 day suspension, they might change their mind on spending the money to retain additional resources to win the case. The cost of a court reporter, expert toxicologist or expert on field sobriety testing is pale in comparison to the cost of losing their driving privileges for a year or more.

If the driver loses the administrative hearing they will have the opportunity to have a trial de novo. The trial de novo is not judicial review under Chapter 536, RSMo., rather there is a new trial altogether and the court does not review the findings and conclusions from the administrative hearing.[2] The trial de novo is the exclusive remedy for the driver.

However, the filing of the petition for trial de novo will not result in the issuance of a stay order to allow the driver to continue driving. If the driver has no prior alcohol-related enforcement contacts within the preceding five years they can receive a restricted driving privilege after the first 30 days of the suspension are completed upon filing an SR-22 insurance certificate. As a practical point, many first time offenders who lose the administrative hearing will not want to pursue the trial de novo. In most cases there are additional attorney fees to file the trail de novo, plus without receiving a stay order allowing the driver to continue driving, the initial 30 day suspension will have run by the time the court hears the trial de novo. In cases where the criminal charge is amended to a non-alcohol related offense or the driver is not going to take a conviction on the DWI it may be advantageous to pursue the trial de novo. This is because the administrative alcohol enforcement contact that is on their record will serve to enhance subsequent administrative actions for the next five years. A criminal conviction would serve the same purpose. But if the driver does not receive a conviction from the underlying offense and has the enforcement contact removed from their record by winning the trial de novo, another DWI arrest in the next 5 years would not subject the driver to a one year revocation.