Missouri Revised Statutes

Chapter 577
Public Safety Offenses
Section 577.023

August 28, 2014


Beginning January 1, 2017--Aggravated, chronic, persistent and prior offenders, when--trial procedures--sentencing information.

577.023. 1. A court shall find the defendant to be a prior offender, prior boating offender, persistent offender, persistent boating offender, aggravated offender, aggravated boating offender, chronic offender, chronic boating offender, habitual offender, or habitual boating offender if:

(1) The indictment or information, original or amended, or the information in lieu of an indictment pleads all essential facts warranting a finding that the defendant is a prior offender, prior boating offender, persistent offender, persistent boating offender, aggravated offender, aggravated boating offender, chronic offender, chronic boating offender, habitual offender, or habitual boating offender; and

(2) Evidence is introduced that establishes sufficient facts pleaded to warrant a finding beyond a reasonable doubt the defendant is a prior offender, prior boating offender, persistent offender, persistent boating offender, aggravated offender, aggravated boating offender, chronic offender, chronic boating offender, habitual offender, or habitual boating offender; and

(3) The court makes findings of fact that warrant a finding beyond a reasonable doubt by the court that the defendant is a prior offender, prior boating offender, persistent offender, persistent boating offender, aggravated offender, aggravated boating offender, chronic offender, chronic boating offender, habitual offender, or habitual boating offender.

2. In a jury trial, the defendant's status as a prior offender, prior boating offender, persistent offender, persistent boating offender, aggravated offender, aggravated boating offender, chronic offender, chronic boating offender, habitual offender, or habitual boating offender shall be found prior to submission to the jury outside of its hearing.

3. In a trial without a jury or upon a plea of guilty, a determination of the defendant's status as a prior offender, prior boating offender, persistent offender, persistent boating offender, aggravated offender, aggravated boating offender, chronic offender, chronic boating offender, habitual offender, or habitual boating offender may be made by the court at any time prior to sentencing.

4. Evidence offered as proof of the defendant's status as a prior offender, prior boating offender, persistent offender, persistent boating offender, aggravated offender, aggravated boating offender, chronic offender, chronic boating offender, habitual offender or habitual boating offender shall include but not be limited to evidence of findings of guilt received by a search of the records of the Missouri uniform law enforcement system, including criminal history records from the central repository or records from the driving while intoxicated tracking system (DWITS) maintained by the Missouri state highway patrol, or the certified driving record maintained by the Missouri department of revenue. Any findings of guilt used to establish the defendant's status as a prior offender, prior boating offender, persistent offender, persistent boating offender, aggravated offender, aggravated boating offender, chronic offender, chronic boating offender, habitual offender or habitual boating offender shall be prior to the date of commission of the present offense.

5. The defendant shall be accorded full rights of confrontation and cross-examination, with the opportunity to present evidence, at such hearings.

6. The defendant may waive proof of the facts used to prove his or her status as a prior offender, prior boating offender, persistent offender, persistent boating offender, aggravated offender, aggravated boating offender, chronic offender, chronic boating offender, habitual offender, or habitual boating offender.

7. If a court finds the defendant to be a prior offender, prior boating offender, persistent offender, persistent boating offender, aggravated offender, aggravated boating offender, chronic offender, chronic boating offender, habitual offender, or habitual boating offender, the court shall not instruct the jury as to the range of punishment or allow the jury, upon a finding of guilt, to assess and declare the punishment as part of its verdict.

8. At sentencing, all parties shall be permitted to present additional information bearing on the issue of the sentence. Nothing in this section shall prevent the use of presentence investigations, sentencing advisory reports or commitments.

(L. 1982 S.B. 513, A.L. 1983 S.B. 318 & 135, A.L. 1991 S.B. 125 & 341, A.L. 1993 S.B. 167 merged with S.B. 180, A.L. 1998 S.B. 634, A.L. 2001 H.B. 302 & 38, A.L. 2005 H.B. 353 merged with H.B. 972 and S.B. 37, et al. merged with H.B. 353, A.L. 2005 1st Ex. Sess. H.B. 2, A.L. 2008 H.B. 1715, A.L. 2008 H.B. 1715 merged with S.B. 930 & 947, A.L. 2009 H.B. 62, A.L. 2010 H.B. 1695, et al., A.L. 2011 H.B. 199, A.L. 2012 S.B. 480, A.L. 2014 S.B. 491)

Effective 1-01-17

Until December 31, 2016--Aggravated, chronic, persistent and prior offenders--enhanced penalties--imprisonment requirements, exceptions--procedures--definitions.

577.023. 1. For purposes of this section, unless the context clearly indicates otherwise:

(1) An "aggravated offender" is a person who:

(a) Has pleaded guilty to or has been found guilty of three or more intoxication-related traffic offenses; or

(b) Has pleaded guilty to or has been found guilty of one or more intoxication-related traffic offense and, in addition, any of the following: involuntary manslaughter under subdivision (2) or (3) of subsection 1 of section 565.024; murder in the second degree under section 565.021, where the underlying felony is an intoxication-related traffic offense; or assault in the second degree under subdivision (4) of subsection 1 of section 565.060; or assault of a law enforcement officer in the second degree under subdivision (4) of subsection 1 of section 565.082;

(2) A "chronic offender" is:

(a) A person who has pleaded guilty to or has been found guilty of four or more intoxication-related traffic offenses; or

(b) A person who has pleaded guilty to or has been found guilty of, on two or more separate occasions, any combination of the following: involuntary manslaughter under subdivision (2) or (3) of subsection 1 of section 565.024; murder in the second degree under section 565.021, where the underlying felony is an intoxication-related traffic offense; assault in the second degree under subdivision (4) of subsection 1 of section 565.060; or assault of a law enforcement officer in the second degree under subdivision (4) of subsection 1 of section 565.082; or

(c) A person who has pleaded guilty to or has been found guilty of two or more intoxication-related traffic offenses and, in addition, any of the following: involuntary manslaughter under subdivision (2) or (3) of subsection 1 of section 565.024; murder in the second degree under section 565.021, where the underlying felony is an intoxication-related traffic offense; assault in the second degree under subdivision (4) of subsection 1 of section 565.060; or assault of a law enforcement officer in the second degree under subdivision (4) of subsection 1 of section 565.082;

(3) "Continuous alcohol monitoring", automatically testing breath, blood, or transdermal alcohol concentration levels and tampering attempts at least once every hour, regardless of the location of the person who is being monitored, and regularly transmitting the data. Continuous alcohol monitoring shall be considered an electronic monitoring service under subsection 3 of section 217.690;

(4) An "intoxication-related traffic offense" is driving while intoxicated, driving with excessive blood alcohol content, involuntary manslaughter pursuant to subdivision (2) or (3) of subsection 1 of section 565.024, murder in the second degree under section 565.021, where the underlying felony is an intoxication-related traffic offense, assault in the second degree pursuant to subdivision (4) of subsection 1 of section 565.060, assault of a law enforcement officer in the second degree pursuant to subdivision (4) of subsection 1 of section 565.082, or driving under the influence of alcohol or drugs in violation of state law or a county or municipal ordinance;

(5) A "persistent offender" is one of the following:

(a) A person who has pleaded guilty to or has been found guilty of two or more intoxication-related traffic offenses;

(b) A person who has pleaded guilty to or has been found guilty of involuntary manslaughter pursuant to subdivision (2) or (3) of subsection 1 of section 565.024, assault in the second degree pursuant to subdivision (4) of subsection 1 of section 565.060, assault of a law enforcement officer in the second degree pursuant to subdivision (4) of subsection 1 of section 565.082; and

(6) A "prior offender" is a person who has pleaded guilty to or has been found guilty of one intoxication-related traffic offense, where such prior offense occurred within five years of the occurrence of the intoxication-related traffic offense for which the person is charged.

2. Any person who pleads guilty to or is found guilty of a violation of section 577.010 or 577.012 who is alleged and proved to be a prior offender shall be guilty of a class A misdemeanor.

3. Any person who pleads guilty to or is found guilty of a violation of section 577.010 or 577.012 who is alleged and proved to be a persistent offender shall be guilty of a class D felony.

4. Any person who pleads guilty to or is found guilty of a violation of section 577.010 or section 577.012 who is alleged and proved to be an aggravated offender shall be guilty of a class C felony.

5. Any person who pleads guilty to or is found guilty of a violation of section 577.010 or section 577.012 who is alleged and proved to be a chronic offender shall be guilty of a class B felony.

6. No state, county, or municipal court shall suspend the imposition of sentence as to a prior offender, persistent offender, aggravated offender, or chronic offender under this section nor sentence such person to pay a fine in lieu of a term of imprisonment, section 557.011 to the contrary notwithstanding.

(1) No prior offender shall be eligible for parole or probation until he or she has served a minimum of ten days imprisonment:

(a) Unless as a condition of such parole or probation such person performs at least thirty days involving at least two hundred forty hours of community service under the supervision of the court in those jurisdictions which have a recognized program for community service; or

(b) The offender participates in and successfully completes a program established pursuant to section 478.007 or other court-ordered treatment program, if available, and as part of either program, the offender performs at least thirty days of community service under the supervision of the court.

(2) No persistent offender shall be eligible for parole or probation until he or she has served a minimum of thirty days imprisonment:

(a) Unless as a condition of such parole or probation such person performs at least sixty days involving at least four hundred eighty hours of community service under the supervision of the court; or

(b) The offender participates in and successfully completes a program established pursuant to section 478.007 or other court-ordered treatment program, if available, and as part of either program, the offender performs at least sixty days of community service under the supervision of the court.

(3) No aggravated offender shall be eligible for parole or probation until he or she has served a minimum of sixty days imprisonment.

(4) No chronic offender shall be eligible for parole or probation until he or she has served a minimum of two years imprisonment. In addition to any other terms or conditions of probation, the court shall consider, as a condition of probation for any person who pleads guilty to or is found guilty of an intoxication-related traffic offense, requiring the offender to abstain from consuming or using alcohol or any products containing alcohol as demonstrated by continuous alcohol monitoring or by verifiable breath alcohol testing performed a minimum of four times per day as scheduled by the court for such duration as determined by the court, but not less than ninety days. The court may, in addition to imposing any other fine, costs, or assessments provided by law, require the offender to bear any costs associated with continuous alcohol monitoring or verifiable breath alcohol testing.

7. The state, county, or municipal court shall find the defendant to be a prior offender, persistent offender, aggravated offender, or chronic offender if:

(1) The indictment or information, original or amended, or the information in lieu of an indictment pleads all essential facts warranting a finding that the defendant is a prior offender or persistent offender; and

(2) Evidence is introduced that establishes sufficient facts pleaded to warrant a finding beyond a reasonable doubt the defendant is a prior offender, persistent offender, aggravated offender, or chronic offender; and

(3) The court makes findings of fact that warrant a finding beyond a reasonable doubt by the court that the defendant is a prior offender, persistent offender, aggravated offender, or chronic offender.

8. In a jury trial, the facts shall be pleaded, established and found prior to submission to the jury outside of its hearing.

9. In a trial without a jury or upon a plea of guilty, the court may defer the proof in findings of such facts to a later time, but prior to sentencing.

10. The defendant shall be accorded full rights of confrontation and cross-examination, with the opportunity to present evidence, at such hearings.

11. The defendant may waive proof of the facts alleged.

12. Nothing in this section shall prevent the use of presentence investigations or commitments.

13. At the sentencing hearing both the state, county, or municipality and the defendant shall be permitted to present additional information bearing on the issue of sentence.

14. The pleas or findings of guilt shall be prior to the date of commission of the present offense.

15. The court shall not instruct the jury as to the range of punishment or allow the jury, upon a finding of guilt, to assess and declare the punishment as part of its verdict in cases of prior offenders, persistent offenders, aggravated offenders, or chronic offenders.

16. Evidence of a prior conviction, plea of guilty, or finding of guilt in an intoxication-related traffic offense shall be heard and determined by the trial court out of the hearing of the jury prior to the submission of the case to the jury, and shall include but not be limited to evidence received by a search of the records of the Missouri uniform law enforcement system, including criminal history records from the central repository or records from the driving while intoxicated tracking system (DWITS) maintained by the Missouri state highway patrol, or the certified driving record maintained by the Missouri department of revenue. After hearing the evidence, the court shall enter its findings thereon. A plea of guilty or a finding of guilt followed by incarceration, a fine, a suspended imposition of sentence, suspended execution of sentence, probation or parole or any combination thereof in any intoxication-related traffic offense in a state, county or municipal court or any combination thereof shall be treated as a prior plea of guilty or finding of guilt for purposes of this section.

(L. 1982 S.B. 513, A.L. 1983 S.B. 318 & 135, A.L. 1991 S.B. 125 & 341, A.L. 1993 S.B. 167 merged with S.B. 180, A.L. 1998 S.B. 634, A.L. 2001 H.B. 302 & 38, A.L. 2005 H.B. 353 merged with H.B. 972 and S.B. 37, et al. merged with H.B. 353, A.L. 2005 1st Ex. Sess. H.B. 2, A.L. 2008 H.B. 1715, A.L. 2008 H.B. 1715 merged with S.B. 930 & 947, A.L. 2009 H.B. 62, A.L. 2010 H.B. 1695, et al., A.L. 2011 H.B. 199, A.L. 2012 S.B. 480)

*This section was amended by S.B. 491, 2014, effective 1-01-17. Due to the delayed effective date, both versions of this section are printed here.


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