Missouri Senate

Perfected

Current state law (Section 302.309.3(2)) allows courts and the Department of Revenue to issue limited driving privileges to allow repeat offenders to drive a motor vehicle to: (1) a business, occupation or employment; (2) medical treatment; (3) school; (4) alcohol or drug treatment programs; (5) an ignition interlock provider for required service; and (6) other circumstances the court or the department finds would create an undue hardship. However, for purposes of federal transportation funding, federal law (23 USC §164) only allows the issuance of a limited driving privilege in connection with: (1) work; (2) attending school; (3) attending alcohol treatment programs; and (4) seeking the required services of an ignition interlock provider. In order to comply with federal law, section 302.309.3(2) must be amended so that a repeat offender limited driving privilege may only be granted for the four purposes authorized by Section 164. Under the terms of this act, the courts and the department will only be able to issue limited driving privileges to repeat offenders for the purpose of driving to or from the operator's place of employment, attending school, attending alcohol or drug treatment programs, and seeking the services of a certified ignition interlock device provider. Limited driving privileges may not be granted for seeking medical treatment or other circumstances that create undue hardships for the driver.

This act also modifies the "hard walk" provision contained in section 302.309.3(6)(a) from 30 days to 45 days in cases of a revocation so that certain repeat offenders will not be eligible for a limited driving privilege until such person has completed the first 45 days of the revocation.

Current Missouri law (Section 577.023) allows prior and persistent offenders to participate in and successfully complete a DWI court in lieu of jail time or community service. A prior or persistent offender may escape the statutory minimum days of imprisonment by performing community service or successfully completing a DWI court program. Federal law, however, does not authorize DWI courts as an alternative to mandatory jail or community service. Under the terms of this act, prior and persistent offenders may avoid the minimum days of imprisonment by performing community service and completing a DWI court program, if such program is available. The DWI court program or other treatment program must include the minimal periods of community service.

Under current law, in a jury trial involving a repeat DWI offender, the defendant's status as a prior, persistent, aggravated, or chronic offender must be pleaded, established and found prior to submission to the jury outside of its hearing. Some repeat offenders have not received a fully enhanced sentence under the law because the Missouri Supreme Court has held that the statutes requiring a defendant's prior offender status be pleaded and proven prior to the case being submitted to the jury is mandatory and that a trial court is not authorized to determine a defendant's repeat offender status after a case is submitted to a jury. This act attempts to remedy the applicable statutes (§558.021 and 577.023) by providing that any error or omission in pleading or proving an offender's repeat offender status may be corrected by amending the pleadings or supplementing the record, on notice and hearing, prior to sentencing. The act further provides that any error in pleading or proving a repeat offender's status shall not require vacation or reversal of sentence on appeal unless such error results in substantial prejudice to the rights of the defendant or a miscarriage of justice, and nothing in the statutes shall be construed to preclude a remand to permit correction of such error after notice and hearing (sections 558.021 and 577.023).

STEPHEN WITTE