My assistant and I are discussing 521.457 (f-1) regarding the new DWLI laws.
(f-1) If it is shown on the trial of an offense under this section that the license of the person has previously been suspended as the result of an offense involving the operation of a motor vehicle while intoxicated, the offense is a Class B misdemeanor.
Hypothetical: John Doe is charged with DWI and refuses to blow and receives an administrative suspension for 45 days.
John Doe is driving during his 45 day suspension and is stopped. Now, is this a Class C? Or, is it a Class B? Does his administrative suspension count as "previously been suspended", or is it a "current" suspension.
Any thoughts would be appreciated.
Class B; it was previously suspended and is also currently suspended.
That is the way I view it as well.
I am re-thinking my response after reading the bill again.
If the defendant's license is currently under suspension for only a breath test failure or refusal, then it would only be a Class C DWLI. If the license is also suspended for any other reason, you could enhance it to a Class B. The problem is that you would be using the same suspension to charge the defendant with DWLI and using the same suspension to enhance it to a Class B.
It appears to be the similar to a situation where an ex-con is found in possession of a firearm and charged accordingly and you sought to use the same conviction to enhance him, which is prohibited.
It sounds like, though, the intent of the statute was to make driving during a suspension that was alcohol related is a Class B--even if the refusal caused the suspension rather than the actual "offense"--or at least that's the take I got from Shannon on a similar question I posted. I think it's supposed to be a Class B?? But it doesn't really say that in the statute!
No fair, Ken! You already convinced me you were right and I was wrong when we first discussed this weeks ago!
I think an ALR suspension because of breath-test refusal (or failure) qualifies as an enhancement for a Class B.
If you look at 524.001(3) the code defines "alcohol-related enforcement contact" for purposes of suspensions.
I think the new law was meant to give a break to first time DWLI offenders-- for example, folks who didn't pay a surcharge for no insurance because they didn't change their address on their DL. Maybe the legislative history for 521.457(e) could shed some light on this.
However, that "break" is not available to folks who have had their licenses suspended for any alcohol-related offenses or have already been convicted of DWLI. That makes sense to me.
Anyway, that's what I'll argue on appeal!
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