http://www.duiblog.com/2004/11/17/believing-you-have-constitutional-rights-in-a-dui-case-can-be-dangerous/ Bad Drunk Driving Laws, False Evidence and a Fading Constitution Wed, 08 Feb 2012 23:35:13 +0000 hourly 1 http://wordpress.org/?v=3.1.3 http://www.duiblog.com/2004/11/17/believing-you-have-constitutional-rights-in-a-dui-case-can-be-dangerous/comment-page-1/#comment-23923 DUI BLOG: New Law: No Right to Jury Trial in DUI Cases Tue, 10 May 2011 08:59:27 +0000 http://duiblog.level2hosting.com/?p=51#comment-23923 [...] Forced Blood Draws by Cops: Constitutional?, DUI and the Disappearing Right to Counsel, Believing You Have Constitutional Rights in a DUI Case Can Be Dangerous, The Disappearing Right to Jury Trial…in DUI Cases and Who Cares About the Rights [...] […] Forced Blood Draws by Cops: Constitutional?, DUI and the Disappearing Right to Counsel, Believing You Have Constitutional Rights in a DUI Case Can Be Dangerous, The Disappearing Right to Jury Trial…in DUI Cases and Who Cares About the Rights […]

]]> http://www.duiblog.com/2004/11/17/believing-you-have-constitutional-rights-in-a-dui-case-can-be-dangerous/comment-page-1/#comment-152 DUI BLOG : Bad Drunk Driving Laws, False Evidence and a Fading Constitution Mon, 11 Dec 2006 22:23:12 +0000 http://duiblog.level2hosting.com/?p=51#comment-152 [...] When a DUI suspect is arrested, he is asked to submit to a blood, breath or urine test. If he refuses, his license will be suspended — for a considerably longer time than if a test had shown .08% or higher. In addition, many states impose an increased penalty in the criminal phase, usually a mandatory jail sentence; some states make refusal a crime independent of the underlying DUI. Finally, the fact of refusing can be used as evidence of “consciousness of guilt” in trial — a practice which has been held by the U.S. Supreme Court not to be a violation of the Fifth Amendment right against self-incrimination. (See my earlier post, “Believing You Have Constitutional Rights in a DUI Case Can be Dangerous“.) The reason for harsher treatment is, of course, to encourage suspects to provide evidence considerably more reliable than an officer’s opinion: it is the evidence that is desired, more than a desire to punish for not cooperating. It would follow, of course, that if a suspect changes his mind and agrees to provide a blood, breath or urine sample — what is referred to as “curing” the refusal — there would be no penalties. Wrong — in most states. A summary of the situation was presented by a New Jersey appellate court where the defendant had initially refused to take a breath test until he could speak with his attorney: We have been referred to various out-of-state decisions in the briefs of counsel. The majority rule in those cases which have an implied consent statute like ours….is that the initial refusal is final and hence that there is no right to “cure” an initial refusal… The cases expressing the majority view essentially turn on the question of the unreasonableness of having police officers turn aside from other duties to administer a test after the driver has initially refused. The cases allowing a “cure” generally do so on the basis that a change of mind after a relatively short delay does not prejudice the presentation of the state’s evidence nor defeat the purpose of the implied consent statute. State v. Corrado, 446 A.2d 1229. [...] […] When a DUI suspect is arrested, he is asked to submit to a blood, breath or urine test. If he refuses, his license will be suspended — for a considerably longer time than if a test had shown .08% or higher. In addition, many states impose an increased penalty in the criminal phase, usually a mandatory jail sentence; some states make refusal a crime independent of the underlying DUI. Finally, the fact of refusing can be used as evidence of “consciousness of guilt” in trial — a practice which has been held by the U.S. Supreme Court not to be a violation of the Fifth Amendment right against self-incrimination. (See my earlier post, “Believing You Have Constitutional Rights in a DUI Case Can be Dangerous“.) The reason for harsher treatment is, of course, to encourage suspects to provide evidence considerably more reliable than an officer’s opinion: it is the evidence that is desired, more than a desire to punish for not cooperating. It would follow, of course, that if a suspect changes his mind and agrees to provide a blood, breath or urine sample — what is referred to as “curing” the refusal — there would be no penalties. Wrong — in most states. A summary of the situation was presented by a New Jersey appellate court where the defendant had initially refused to take a breath test until he could speak with his attorney: We have been referred to various out-of-state decisions in the briefs of counsel. The majority rule in those cases which have an implied consent statute like ours….is that the initial refusal is final and hence that there is no right to “cure” an initial refusal… The cases expressing the majority view essentially turn on the question of the unreasonableness of having police officers turn aside from other duties to administer a test after the driver has initially refused. The cases allowing a “cure” generally do so on the basis that a change of mind after a relatively short delay does not prejudice the presentation of the state’s evidence nor defeat the purpose of the implied consent statute. State v. Corrado, 446 A.2d 1229. […]

]]> http://www.duiblog.com/2004/11/17/believing-you-have-constitutional-rights-in-a-dui-case-can-be-dangerous/comment-page-1/#comment-15 RIDL_Prez Wed, 17 Nov 2004 20:15:54 +0000 http://duiblog.level2hosting.com/?p=51#comment-15 <a></a>Having read the constitution myself cover-to-cover, I'm having a VERY difficult time finding that "DUI exception". I just don't see it anywhere.  All crimes should be treated equally.  The only way to change this is for the american people to stand up and say ENOUGH!!! Having read the constitution myself cover-to-cover, I’m having a VERY difficult time finding that “DUI exception”.
I just don’t see it anywhere.  All crimes should be treated equally.  The only way to change this is for the american people to stand up and say ENOUGH!!!

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