Who Cares About Drunks?
Posted by Lawrence Taylor on September 17th, 2008For many years now I’ve written and lectured extensively on drunk driving litigation – on the science of blood and breath alcohol analysis, the flaws in breathalyzers, the ineffectiveness of field sobriety testing. In recent years, however, my focus has increasingly shifted to the gradual erosion of constitutional rights in DUI cases.
So who cares about drunk drivers and their constitutional rights?
You should care. The importance of what is happening in DUI law and procedures can be summarized in one word: precedent.
We are a nation of laws, more specifically, the common law inherited from the British legal system. Unlike most nations, which use some version of the French civil law where laws are found in codes, we look to the precedent of judicial decisions interpreting statutory law. When a court looks at the facts in a specific case, it applies not only statutes but decisions in appellate court cases to determine what the law is. The genius of this common law system of precedent is its flexibility; its flaw is what many call “judicial legislation”.
The flaw becomes particularly noticeable when dealing with politically unpopular subjects. And few topics are as politically “incorrect” as drunk driving. Judges are, after all, politically sensitive animals who want to be reelected. Put another way, it is very easy to rule in favor of the prosecution in DUI cases — particularly when powerful pressure groups like Mothers Against Drunk Driving (annual revenues of over $47 million) are so vocal in elections and in legislatures. There are few advocates for the accused or the Constitution during election campaigns.
This judicial attitude is not limited to judges considering re-election. A majority of the U.S. Supreme Court has been consistent in depriving the accused in DUI cases their constitutional rights. To mention a few examples:
Michigan v. Sitz. The Court held that sobriety roadblocks were permissible — despite the fact that there is no exception in the Fourth Amendment for stopping citizens without reasonable suspicion.
South Dakota v. Neville. The Fifth Amendment right against self-incrimination was held inapplicable in drunk driving cases (refusing to submit to testing).
Blanton v. North Las Vegas. Even though punishable by six months in jail, fines and diver’s license suspension, there is no Sixth Amendment right to a jury trial in a drunk driving case.
California v. Trombetta. Although police normally have to save evidence, they do not have to save breath samples in DUI cases (even though it is easy and inexpensive to do so).
So…we have seen a steady flow of appellate decisions at all levels taking away the constitutional rights of those accused of DUI. Again, so what?
Again, precedent: What happens today to a citizen accused of DUI can happen tommorrow to a person accused of any other crime. If police can set up roadblocks to check everyone for intoxication, they can set them up to search for drugs (which, incidentally, has already happened). If a citizen accused of DUI has no right to a jury of his peers, then the precedent exists to deny the right to citizens accused of tax evasion or any other offense.
The danger of precedent in the DUI field is not limited to judicial decisions. Legislatures are also guilty of passing unfair and/or unconstitutional — but politically popular — statutes. We have certainly seen a seemingly unending series of unfair and unconsitutional statutes across the country in recent years: immediate license suspensions at the police station; double jeopardy/punishment (license suspension and criminal prosecution); so-called per se laws (.08% blood-alcohol is illegal, even if sober); presumption of guilt (if .08%, presumed to be under the influence; if .08% when tested, presumed to be .08% when driving); ad nauseum. And having passed such laws relating to DUI, they are less reluctant to do so in other areas as well.
So who cares about DUI? To paraphrase, “First they came for the drunks, but I was not a drunk so I did not speak up…..”
Excellent writing! Well stated and right on the money.
Comment by koivisto — September 17, 2008 @ 4:56 pm
More fantastic writing , thank you….
California v White 4-23-08,
Exercised both fourth, fifth, and sixth Amendment rights DUI allegation dropped.
I ‘m here to change this…. I refused FST, and Breath, only after the CHP approached my vehicle and before I had my window down yelled, “you can put the water bottle down, nothing is going to help you now”…
well, it certainly does not take a rocket scientist and a lawyer to know that at that very moment according to the CHP officer “nothing was going to help me now” So what exactly did this officer mean?
I knew exactly what he meant, all my rights were stripped away and I was being profiled for driving on a highway late at night, nothing was going to help me now? Help me now from what? what was on this officers mind? There was no probable Cause.
When I was told nothing is going to help me now… I made up my mind immediately: “if nothing is going to help me now, I’m not going to help the CHP or the Government of my mom, dad, sister” I mean really , is that how you approach people during a stop?
So just what did this CHP officer have in his mind before I even rolled down my window?
We’ll never know….
I hope that my case is the reverse of the terrible trend that is occurring, I demanded a jury trial and the chp video as well, I hope my actions help our US constitution.
Yeah my case was tossed, I plead to a non alcohol related reckless driving. Absent a court conviction the DMV took my license a month before my trial, the DMV was certain that I’d be found guilty, or admit guilt, I refused the Governments intrusion of my rights…
The DMV with no rhyme or reason suspended my license.
I’m a Proud American Patriot, I hope my case will be a precedent for others… of course MADD, and everyone concerned tossed my case under the rug, no publicity, no MADD representative in the court room, no body here’s about the Patriotic American that stands up for our Constitution.
Everyone cow tow’s to police, when I was in court, and I’ve said this before the Judge and the DA seemed to light up when my name was called, they were a little more cheerful. I was witnessing a tread mill of the same old guilty pleas.
It felt like the Judge and DA reactions were, “finally we have a winner, this guy stood up for his rights, thank god” that’s how the reaction was in court….
Remember the DA’s, judges and clerks are people too, after a long period of time they’d get awfully upset about all these people NOT exercising their rights. I know I would.
We need more people to refuse this tyranny.
I’m tired now, this country was great, it’s not so much anymore. My American dream is destroyed at 43 years old. My business is destroyed, income, ability to provide for my family….. At least the Constitution is still there, at least it worked for me, I hope it still works in the next few years…
Comment by RichardAlan — September 17, 2008 @ 7:38 pm
I am happy I have found this site.
Just last weekend I had a DUI forced on me. I was driving home after a festival was held in our town. I drank 4 beers in 5 hours and left the street dance with my wife and son. I live about 10 miles out of town.
I was about 2.5 mile into my way home and an officer pulled within a cars length distance from me. I decided to slow down and let them pass and I turned my blinker on and the lights lit up.
I was pulled over and advised I was being video and audio recorded. I was advised I failed to maintain my lane and went over the fog line twice, and he smelled alcohol coming from the vehicle.
I did the eye test and said I couldn’t do the balance tests. I agreed to a roadside breathalizer. My son heard him tell backup I blew a .05.
He came to the window and had me step out of the car telling me I was being arrested for a DUI my BAC was .097.
I was taken to the sherrifs office 30 mi away,
and given another breath test.
This test showed a .043 and .044, I was booked and had to spend the night in jail. I had to let them know I wasn’t able to be in the same room as the other offenders because I worked for the WA State Department of Corrections (DOC).
I was treated like a criminal and now await trial, I am looking for an attorney to prove what should have been proved that night. I wasn’t intoxicated let alone buzzed.
Wish me luck!
Ross
Comment by Ross B — September 19, 2008 @ 11:01 pm
I witnessed a representative of MADD talking before a group of forty people. He stated that his desire would be that any DUI offendor should be killed. What followed, I could not believe, he was asked whether he ever drove while drunk. He stated that he had, but it was in the ’50’s when it was not a relevant problem.
I’m not in denial, I quit drinking in 1990, but fell off the sobriety for two years. This is already five years ago. So, in eighteen years, I’ve been sober fifteen. I finally completed DUI class and a Intensive Outpatient Program costing a couple thousand dollars. When getting my license back, they told me no. Virginia is now going to make me do the same thing through VASAP. I’m glad VA was the only other state I got a DUI, besides WV. I’d be a busy man walking around to all these classes. We are soon to be under total control by the government. Lets see, hive minded ELEMENTAL ruled Democrats, or unbalanced theocratic bandit Republicans. I don’t need crutches anymore. I wish I never needed any but something wrong has happened to the people or this government. Perhaps it is something unseen but there nonetheless. MADD is fear, hate and vengence based, and the government affiliating itself with these types is very revealing. I look within now, as I do not see anything without worth the focus of my attention. The deeper inside I reach, the further from here I can see.
Comment by bewildered1 — October 2, 2008 @ 8:37 pm