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Criminal Law FAQ

There are two methods of expungement in the State of Missouri. One is intended to expunge an arrest record, and the other is intended to expunge findings of guilt.
In order to expunge an arrest record, a verified petition must be filed in the County where the arrest occurred. The petition must name as defendants all law enforcement agencies, courts, prosecuting attorneys, central state depositories of criminal records or others who the petitioner has reason to believe may possess the records subject to expungement. The court's order will not affect any person or entity not named as a defendant in the action. There are very limited circumstances available for use of this type of expungement.
The circumstances under which findings of guilt may be expunged are limited and are based on the offense. Section 610.130 RSMo. provides for alcohol-related driving expungements (excessive BAC and DWI) under limited circumstances. Section 610.140, RSMo. sets out the circumstances under which other finding of guilt for offenses is authorized.
Beyond the offenses listed in those two statutes, findings of guilt may not be expunged for other offenses.
If you are investigating the possibility of expungement, you should consult with an attorney about what can and cannot likely be accomplished.
The extent of information gathering in a criminal records search depends on the type of criminal record check that is being done.
Under Missouri Law, criminal convictions are placed on your record after your 17th birthday. Juvenile records are closed records, but if you were determined by the court to be an adult before your 17th birthday, then criminal records will be included back to that date.
Arrests for which no charges are filed, or charges are dropped, or for a
completed probationary period where the court suspended imposition of sentence (SIS), all typically result in a close record under Missouri Law. Closed records are not generally available to the public, but all these events remain recorded and available to law enforcement. Moreover, certain security clearance checks may show arrests and findings of guilt resulting in an SIS as well.
If you have a specific question whether a given event will appear in a criminal record check, it is best to consult with an attorney.
This answer is limited to a response regarding a criminal charge, and does not address a domestic violence restraining order.
From a criminal standpoint, the process with start with a complaint to law enforcement, and may result in the accused being arrested.
If a complaint does not result in an arrest, law enforcement may issue a summons, may send reports to the prosecuting attorney for a charging decision, or may take no action. If a summons is issued, the accused must appear in court on the date set by the summons.
If the prosecuting attorney files charges, a summons may be issued or a warrant may be issued.
If an arrest takes place at the time of the complaint, law enforcement then has 24 hours to determine whether to issue a summons, or request charges by the prosecuting attorney and a warrant from the court. After the 24 hour period expires, if charges are not filed and an arrest warrant issued, then the accused must be released.
The charging decision will be made by the prosecuting attorney. The case can be filed as either a misdemeanor or a felony, depending on the severity of the injuries.
The domestic violence statutes set out in Chapter 565, RSMo. (crimes against persons).
There are four levels of domestic assault charges, and they range from a misdemeanor at the lowest level all the way up to a class A Felony at the highest level.
Misdemeanors are processed in Associate Circuit Court based on an Information being filed by the prosecuting attorney. Felonies are initially processed in Associate Circuit Court based on a Complaint being filed by the prosecuting attorney. However a felony case may not proceed further until there is a judicial review of the charges and a determination made that there is probable cause for the case to proceed to trial. Either a public Preliminary Hearing will take place before an Associate Circuit Judge, or a more confidential presentation of evidence will take place before a Grand Jury. If either the Associate Circuit Judge or the Grand Jury thinks there is probable cause to believe a felony was committed and the accused committed it, then the case is sent on to the Circuit Court for trial. Circuit Court charges following a Preliminary Hearing are based on an Information, but charges following a Grand Jury are based on an Indictment.
If a charge results in a warrant being issued, conditions of bond may include a provision that the accused have no contact with the victim. If the victim is married to the accused, the bond conditions may require that the accused move out of the house.
Domestic violence cases can be very complex, and there can be additional consequences in addition to the punishment imposed by the court. No two cases are alike, and it is almost impossible to give an answer that will include all the permutations. Given that each case is factually different, and each case will turn on unique facts, you should consult an attorney to understand the process applicable to a specific case.
Driving while suspended in Missouri is a class D misdemeanor for a first offense, and the he maximum sentence in Missouri is $300. However it is also a twelve point offense – meaning that the Department of Revenue will assess twelve points against your license and that your driver’s license will also be revoked for one year from the date of conviction.
If there are multiple offenses for driving while suspended, the level of punishment goes up for each successive conviction. A second or third offense is a class A misdemeanor and the range of punishment goes up to one year in county jail and or up to a $2,000.00 fine. Additional offenses can result in felony charges that may include prison time.
The Missouri Department of Revenue points system, and the effect of points being assessed against driving privileges, is the subject of a separate article.
Not typically at this point. The state can conduct a blood test for the presence of drugs, but generally the State does not test for drugs unless there is some reason to believe that drugs were the cause of intoxication and impairment.
A blood test for the presence of drugs does not detect drug levels – only showing the presence or absence of a given drug or its metabolite.
Yes. As to motor vehicles, in the State of Missouri there are a total of seven different levels of Driving While Intoxicated/Excessive Blood Alcohol Content. The level depends on the number of previous convictions and whether someone is injured or killed as a result of driving while impaired.
A first offense without injury is a B misdemeanor. A 2nd Offense is a class A misdemeanor. A third offense is a Class E felony. A fourth offense is a Class D felony. A fifth offense is a Class C felony. A sixth offense is a class B felony. A seventh or more offense is a class A felony.
If anyone was injured or killed as a result of the offence, the levels of the offense start as a felony.
Municipalities can also charge Driving While Intoxicated. While technically municipal DWI cases are civil and do not involve a true criminal conviction, jail time and fines may be imposed. Under most circumstances, a municipal DWI conviction will count toward later enhancement of a State DWI charge arising from a separate later incident.
Both State and municipal DWI convictions will result in assessment of “points” by the Department of Revenue against driving privileges, and will be the subject of administrative driving actions regardless of the charges filed. Both subjects are addressed in separate FAQs and articles.
Missouri also has separate charges available for Boating While Intoxicated and Aircraft Operation While Intoxicated, the consequences of which are not addressed here.
Two separate actions arise out of every DWI case in Missouri.
The first cause of action is the criminal case. Criminal cases use a standard of proof that is “proof beyond a reasonable doubt”.
Criminal DWI cases generally start with the accused being arrested.
If a complaint does not result in an arrest, law enforcement may issue a summons, may send reports to the prosecuting attorney for a charging decision, or may take no action. If a summons is issued, the accused must appear in court on the date set by the summons. If the prosecuting attorney files charges, a summons may be issued or a warrant may be issued.
If an arrest takes place at the time of the complaint, law enforcement then has 24 hours to determine whether to issue a summons, or request charges by the prosecuting attorney and a warrant from the court. After the 24 hour period expires, if charges are not filed and an arrest warrant issued, then the accused must be released.
The charging decision will be made by the prosecuting attorney. The case can be filed as either a misdemeanor or a felony, depending on the number of prior DWI offenses the accused has plead guilty to or been found guilty of in the past.
Misdemeanor cases are processed in Associate Circuit Court based on an Information being filed by the prosecuting attorney. Felonies are initially processed in Associate Circuit Court based on a Complaint being filed by the prosecuting attorney. However a felony case may not proceed further until there is a judicial review of the charges and a determination made that there is probable cause for the case to proceed to trial. Either a public Preliminary Hearing will take place before an Associate Circuit Judge, or a more confidential presentation of evidence will take place before a Grand Jury. If either the Associate Circuit Judge or the Grand Jury thinks there is probable cause to believe a felony was committed and the accused committed it, then the case is sent on to the Circuit Court for trial. Circuit Court charges following a Preliminary Hearing are based on an Information, but charges following a Grand Jury are based on an Indictment.
The second cause of action is an administrative action by the Department of Revenue related to the accused’s driving privileges. If a breath sample is obtained, and that sample shows a blood alcohol content in excess of .08%, the accused’s driver’s license will be suspended. The prior of suspension varies depending on whether the accused had prior alcohol related suspensions, and how many.
If a breath sample is not obtained because the accused refused to provide a sample of blood, breath, or urine, their license could be revoked. The difference between a suspension and a revocation is addressed in a separate article, along with the separate effect of “points” assessed by the Department of Revenue following any conviction.
It is also possible for both a refusal and an administrative action to be instituted where a search warrant is issued after a refusal, and a blood sample is taken. In all of those instances, an accused has a right to request some kind of hearing to review the decision to suspend or revoke their license.
To fully understand all the criminal and administrative consequences of a DWI based on the unique facts of your case, you should consult with an experienced attorney.
On the most basic level, the differences between state and federal charges are that a federal charge alleges a crime committed under a federal statutes while state charges allege a violation of state statutes. Consequently, the local county prosecutor files charges in the county in which the state crime is alleged to have been committed, but in federal cases the US attorney’s office files cases in the federal district court the federal crime is alleged to have occurred.
There are only two district courts in Missouri for federal court, the Eastern District and the Western District. The Eastern District is located in St. Louis, and the Western District is based in Kansas City, though there are smaller offices in other locations.
It is possible for certain crimes to be violations of both federal and state law and, because of the dual jurisdiction, it is possible to find charges being filed in both state and federal court for the same act. Under most circumstances, this dual jurisdiction exists as an exception to the Double Jeopardy Clause in the Fifth Amendment to the United States Constitution.
Municipalities can enact ordinances against conduct that is also prohibited by state statutes. Technically these municipal ordinance violations civil and do not involve a true criminal conviction, jail time and fines may be imposed.
If a person is arrested without a warrant for an alleged violation of a state statute in Missouri, the person can only be held for 24 hours before the State must file charges and a warrant be issued by a Court. If no charges are filed and a warrant issued within 24 hours, the arrestee must be released.
Once a warrant is issued it is possible for a person to be held until either the conditions of bond are met or until trial if they cannot post a bond.
Once a person is convicted of a crime, they can be held until the sentence is completed unless they are released earlier by operation of law -- such as probation or parole.
Generally, proceedings before a Grand Jury are confidential and must be conducted in secret. The only individuals who may be present while testimony is being given are members of the Grand Jury, attorneys for the government, the testifying witness, an interpreter when needed, and a court reporter to record the testimony.
A witness usually is only asked to appear before the Grand Jury when that person is believed to have some information or knowledge about a matter under consideration by the Grand Jury. It is possible the witness may have information related to a crime, or heard something about a crime, or have witnessed an event related to the commission of a crime. Sometimes witnesses may possess information concerning a crime yet may not recognize it as such.
During an appearance before the Grand Jury, a witness is required to answer all questions asked, except where the privilege against self-incrimination would apply. A knowingly false answer to the Grand Jury for any question could be the basis for a prosecution of the witness for perjury.
Anything that a Grand Jury witness says which tends to be incriminating may be used against them by the Grand Jury, or later used against them in court. A witness may consult with an attorney before testifying, and a witness many have an attorney outside the Grand Jury room. If it is desired, the witness will be afforded reasonable opportunity to step outside the Grand Jury room to consult with the attorney before answering any questions, but the attorney is not allowed to be in the courtroom with the witness.
The decision in Miranda v. Arizona requires a person to be advised about their right against self-incrimination, and their right to counsel, under limited circumstances.
First, the person must be in custody – meaning they are not free to leave. A person does not have to be formally arrested for the requirement of Miranda warnings to be triggered. For example, during a field investigative detention for a suspected DWI, the driver is not free to leave (even though they are not yet under arrest), and as such the requirement for Miranda warnings may be triggered.
The second requirement for triggering Miranda warnings is that no warnings are required if the officer is not asking questions designed to elicit incriminating information. Officers are required to explain Miranda rights if they are not asking questions designed to elicit incriminating information. For example, a police officer can simply walk up to you on the street and talk to you and, because they are not questioning you as suspect in a crime, the requirement for Miranda warnings is not triggered.
A felony is any serious offense for which the range of punishment can (not always) includes a period of incarceration in the Missouri Department of Corrections (state prison) or the United States Bureau of Prisons. Felonies may also include monetary fines.A misdemeanor is a less serious offense that the range of punishment does not include a period of incarceration in a state or federal prison, but it can still include imprisonment for a period of up to one year in the local county jail. Misdemeanors may also include monetary fines.Probation is a period of supervision (by the Department of Probation & Parole usually) of a defendant after a finding of guilt or a plea of guilty, but before either sentence is imposed (called an SIS for Suspended Imposition of Sentence) or after a sentence is imposed but before the sentence is executed (called an SES for Suspended Execution of Sentence). Generally speaking, probation is an effort by the Court to set the defendant on a path of acceptable behavior without the need for imprisonment. If the defendant violates the terms of the supervised probation, sentence will be imposed and/or executed, and the defendant may be imprisoned.
Once a defendant is sentenced and the sentence executed by the defendant being imprisoned, the defendant may be able to earn an early release from imprisonment. If the defendant is released from imprisonment before the full sentence is served, the defendant will be on a period of supervision (by the Department of Probation & Parole) following release from imprisonment. If the paroled (released) defendant violates the terms of the supervised parole, they may be returned to imprisonment to serve out the remainder of their sentence.
If you are charged with a crime, immediately consult with an attorney. The processes of the criminal law are simply too complicated to navigate through without legal counsel. After you have a chance to convey all necessary information to an attorney, they can advise you whether or not you should talk with law enforcement, and assist with any communication. Remember, the attorney-client privilege allows you to discuss any matter with your attorney confidentially, and share all necessary information to make an informed decision in making that decision. Your attorney can not be called as a witness against you and, except for extremely limited circumstances, your attorney can never reveal the content of your communications to anyone. Once you are convicted of a DWI, the criminal effects will be the punishment sentence imposed by the Court. The range of punishment varies based on the number of prior incidents you have been involved in, and whether anyone was injured or killed in the incident. You may begin serving a sentence of imprisonment, pay a fine (or both), or you could be placed on probation. The range of punishment is set out in greater detail in the answer to other FAQs.
If you are placed on probation, you will have a number of conditions of probation that you must follow. Typical conditions of probation would include community service, completion of SATOP (Substance Abuse Traffic Offender Program), and an ignition interlock device may be required to be place on any vehicle you operate.
In addition, your driver’s license will be either be suspended or revoked. The length of time again depends on the number of previous convictions. The details are set out in a separate blog article.
There are other collateral consequences as well, including an effect on your insurance.
Never talk to the police without first talking to an attorney. There are many times when it can be very beneficial to talk with law enforcement officers, but the only way to know to a certainty is if you are able to make an informed decision by first getting advice from counsel based on the unique facts in the case. Law enforcement is not required to be open or entirely forthcoming with information when questioning a suspect. Knowing the full extent of your legal rights, and how they may apply under the facts of your case, is the only way you can know whether speaking with the police is going to be beneficial or harmful.
The answer is most likely “Yes”, but probably only with the permission of your probation or parole officer. In most instances, your probation officer will want to make sure that the new residence is appropriate for a person under supervision. People convicted of a felony are not usually allowed to live with other people who are either on probation or parole. A probation & parole officer will normally review a home plan for their clients who want to change residence. As long as the home plan is acceptable, probation & parole officers will often allow the move. If the probation & parole officer denies move and home plan, you may be able to ask the Court placing you on probation to review that decision.Even if you are not guilty of a crime, if you are caught up in a law enforcement investigation it is every bit as important for you to seek counsel as if you did commit a criminal violation. An attorney can help you navigate through the criminal justice system, and assist in the investigation.
Keep in mind that the legal finding of “guilty” or “not guilty” do not mean “did it” or “didn’t do it”. “Guilty” and “not guilty” are findings about the quality of the evidence – what was proven and not proven to the satisfaction of the jury. It is in the process of this evaluation of evidence that an experienced attorney will likely provide the greatest assistance. An attorney can analyze the evidence, and point out the strengths and weaknesses. It is only after a complete evaluation of the evidence, based on the unique facts present in any case, that an attorney can help you make an informed decision on how to proceed – whether you committed a crime or not.

FAQs are presented by Williams, Robinson, Rigler & Buschjost, PC as a public information service only.  None of the information contained herein is intended to be taken as legal advice.  Each matter depends on unique facts which attorneys must consider in forming an opinion, and may depend on laws unique to a particular jurisdiction.  No two cases are the same.  If you want to know more about this subject, contact Williams, Robinson, Rigler & Buschjost, PC, or the attorney of your choice, and seek a formal opinion about your particular case.

  
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