Missouri Implied Consent Notice (DWI breath testing) Unlawful Due to Coercive Nature of the Warning

Posted by Matt McLane | Nov 16, 2018 | 0 Comments

In a recent Missouri Court of Appeals case, Thomas vs. Department of Revenue (No. ED106360, Nov. 13, 2018) , Petitioner  Earnie Thomas appealed the suspension of his license following a breath test of 0.083%.  He argued the Implied consent advisory read to every driver prior to breath testing is false and misleading in that the phrase "if you refuse the breath test your license will be immediately suspended for one year " is entirely inaccurate.  In fact, the driver has 15 days to determine whether to appeal the suspension by way of written request for a hearing.  There is no immediate suspension as announced in the implied consent warning.  At the trial, Thomas objected to the breath test result, arguing his due process rights were violated.  After a bench trial, the trial court concluded Mr. Thomas's constitutional due process rights were in deed violated when he was informed that his license would be “immediately” revoked if he refused to submit to the breath test, as expressly required by Section 577.041.1, because the word “immediately” is “patently false,” given that revocation does not actually begin for at least fifteen days under the law. This conclusion necessarily challenges the constitutional validity of Section 577.041.1 because, if upheld, a due process violation would occur every time an officer complies with the statute.

About the Author

Matt McLane

Matt McLane was born in Topeka, Kansas, and moved to Pittsburg, Kansas in 1980 where he attended middle school, high school and college. Upon graduation from PSU in 1992, Matt moved back to Topeka where he attended Washburn University law school. Upon graduation, he moved to Overland Park and worked in a small firm handling DUI and traffic cases. He opened the McLane Law Firm in April 2011 and has built his firm on a strong referral base and solid reputation.


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McLane Law Firm

Matt McLane has been defending individuals charged with DUI, traffic and criminal offenses since his graduation from Washburn University Law School in 1996. Licensed in the states of Kansas and Missouri. Mr. McLane specializes in DUI and criminal defense throughout the Kansas City metropolitan area.

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