Policy & Procedures:

Driving While Intoxicated

The Cape Girardeau County Prosecuting Attorney’s Office follows the following policies and procedures in DWI cases:

FIRST OFFENSE

1. For a true first offense, we will normally be willing to recommend an SIS (suspended imposition of sentence), as long as an accident or injury was not involved. We will always seek an alcohol evaluation and follow-up counseling as a condition of probation. Other conditions will usually include: (1) Consume no alcohol; (2) Submit to blood, breath or urine tests at request of law enforcement or probation officer; (3) Not entering any place where sale of alcohol is the primary function of the business. It has been our experience that 85% of the true first offenders who get counseling do not drive drunk again. Ever since the law was changed so that a guilty plea with an SIS counts as a prior conviction in a DWI setting, there is no longer the incentive for prosecutors to fight having a first offender get an SIS.

2. We will generally be willing to amend a DWI charge to a BAC (driving with excessive blood alcohol content) charge when we feel the facts seem to fit the BAC offense better than the DWI offense. (For example, when the Defendant did well on the field sobriety tests, but still tested .08 or higher).

3. We will virtually never agree to a fine in a DWI or BAC case, even on a first offense, unless there is a real problem with winning the case should it go to trial. I view a fine as the worst possible punishment in a DWI prosecution, since it allows a person to leave the criminal justice system with neither jail time nor alcohol treatment, making it virtually certain that he or she will drink and drive again. A fine is the true "slap on the wrist" in the DWI setting.

4. We will never reduce a DWI or BAC to a C&I (careless & imprudent driving) charge unless we are absolutely convinced that we could not win the DWI case.

SECOND OFFENSE

1. On a second DWI or BAC offense, we want some amount of county jail time, either as a sentence or as shock detention as a condition of probation.

2. Our usual offer for a second offense (or for a class B first offense for someone with old or unusable priors) would be a 6 month sentence, SES (suspended execution of sentence), with probation. We want a second offender to serve some "shock" time in the county jail as a condition of probation. Another way of getting the county jail time is by giving a sentence of 15 to 30 days on the companion charge (such as driving without a license, failure to drive on the right half of the roadway, etc.). In addition to the "shock" time, the other conditions of probation would otherwise be similar to those for a first offense, except that we should usually ask for the ignition interlock device as another condition.

3. In the alternative, a jail sentence of 30 to 60 days to serve would be appropriate.

4. If a person enters an in-patient alcohol treatment program like the Gibson Center or the Hyland Center, we are willing to have that in-patient incarceration take the place of jail time on a day-for-day basis. Thus, a 30-day stint in the Gibson Center would probably cause us to back off our request for shock detention or a 30-day jail sentence.

THIRD OFFENSE

1. Our normal recommendation for a third offense will be incarceration in the Missouri Department of Corrections for a 3 or 4 year sentence, but we will not oppose having the court retain 120 day jurisdiction for the drunk-driver to attend the prison’s behind-the-walls alcohol treatment program.

2. We will not agree to probation in a felony DWI case unless there is a real problem with proving the case. An assistant should check with Morley before ever agreeing to probation in a felony DWI case. We might agree to it if the person has entered an in-patient alcohol treatment program and there seems to be some lack of jury appeal or some other problem with the case.

AGGRAVATED OFFENDERS -- FOURTH OFFENSE

1. Our normal recommendation will be a sentence of 4 or 5 years in prison. By statute, an aggravated offender is not eligible for probation or parole until he or she has served a minimum of 60 days inprisonment. Section 577.023.6, RSMo. Supp. 2005.

2. If the Defendant has never attended the prison’s 120 day program, and has never been to prison at all, we might agree to not oppose having the judge retain 120 day jurisdiction and having the Defendant enter the prison’s alcohol treatment program.

3. NOTE: If the Defendant has two felony convictions of any type we should charge his felony DWI as a prior and persistent felony offender, thereby increasing his range of punishment. These felonies might be completely unrelated things like burglaries or drug offenses, or they might be prior felony DWI offenses. We should always file the enhanced charge to give the judge the opportunity to utilize the full range of punishment available. A recent case has clarified that the same priors used to make a repeat-offense DWI into a felony can be used to make the Defendant a prior & persistent offender. Self v. State, 14 S.W.3d 223 (Mo. App. S.D. 2000).

4. If the Defendant has been through the 120 day program before, we will not be willing to join in a recommendation for it again. We will be asking for a straight prison sentence to serve.

1. Certainly at 4 or more priors, we have reached the point where the emphasis has shifted completely from trying to change the Defendant’s ways to simply protecting the public from him as long as possible. At that point, the Defendant simply needs to be warehoused as long as possible via a prison sentence to serve. The DWI offense will be a class B felony (and may be a class A felony if Defendant is a prior and persistent felony offender). By statute, a chronic offender must serve at least 2 years of his or her sentence before being paroled.

2. As with Aggravated Offenders, if the Defendant has two felony convictions of any type we should charge his new felony DWI as a prior and persistent felony offender, thereby increasing his range of punishment. These felonies might be completely unrelated things like burglaries or drug offenses, or they might be prior felony DWI offenses. We should always file the enhanced charge to give the judge the opportunity to utilize the full range of punishment available. A recent case has clarified that the same priors used to make a repeat-offense DWI into a felony can be used to make the Defendant a prior & persistent offender. Self v. State, 14 S.W.3d 223 (Mo. App. S.D. 2000).

MISCELLANEOUS

1. We will never reduce a provable felony DWI to a misdemeanor DWI; nor will we usually reduce a class A misdemeanor DWI to a class B misdemeanor.

2. We will not normally dismiss a driving while revoked charge in exchange for a plea to the DWI count.

3. We will never agree to refrain from pursuing the civil breathalyzer refusal case or the civil driving with .10 or higher case in exchange for a plea to our DWI. The Department of Revenue has asked us not to negotiate away those cases so we won’t.

4. In a situation where a defendant is facing more than one DWI at once, we will never drop one DWI in return for a plea to the other.

5. When circumstances permit, we will consider trying to obtain a conviction in the same case for both DWI and BAC. Many courts in other states have held that this does not violate Double Jeopardy. Missouri does not yet have a case on point.