I’ve posted long and hard over the years about the inaccuracy and unreliability of breathalyzers. See How Breathalyzers Work – and Why They Don’t. But at least you could always refuse to take the test. You aren’t required to incriminate yourself, right? I mean, this is America and we have the Constitution to protect us.
Maybe not. This looks like yet another in a long list of constitutional rights that are slowly disappearing in DUI cases. See, for example, The DUI Exception to the Constitution, The Disappearing Right to Jury Trial…in DUI Cases, DUI and the Disappearing Right to Counsel, Are DUI Roadblocks Constitutional? and Forced Blood Draws by Cops: Constitutional?.
House Votes to Criminalize DUI Test Refusals
Topeka, KS. May 17 — After a lengthy discussion of constitutional rights, the House has approved a bill that makes it a crime for suspected repeat offenders to refuse a drunk-driving test…
Under Senate Bill 60, drivers with a DUI conviction or prior refusal of a DUI test would automatically be guilty of a misdemeanor if they refuse a test. The penalty would be the same as for a DUI conviction.
The House passed the bill 103-13, but not without some concerns expressed by members that it “tramples” the right to remain silent when accused of a crime.
Rep. Sean Gatewood, D-Topeka, said he’s seen many drunk driving crashes and the harm they cause working as a firefighter and paramedic.
But he said he was not comfortable with making it a crime to refuse to take a breath or blood test.
“These are American citizens and they have the right to remain silent, which this bill sort of tramples on, because if you just stand there silent … then you’re a criminal,” Gatewood said. “You have your 4th and 5th Amendment rights … and I just think there is no greater ridge to stand on than the Constitution of the United States.”
Gatewood proposed to send the measure back to a House-Senate conference committee for further work, but that motion died on a 23-88 vote.
Rep. Pat Colloton, R-Leawood, who carried the bill on the floor, acknowledged that its impact on constitutional rights was an important issue, but on balance she supported it.
She said courts are being clogged with repeat offenders who refuse the DUI test and take their chances with a jury.
Some lawmakers said stopping drunk drivers outweighed the constitutional questions.
“I would gladly walk the line, breathe into the tube and draw my blood if it would get repeat drunk drivers off the road,” said Rep. Bill Otto, R-LeRoy. “This is about people who are killing people.”
“This is not about constitutional rights,” he continued. “What about the constitutional right to life, liberty and the pursuit of happiness? (a phrase from the Declaration of Independence, not the Constitution) When you’re killed by a drunk driver, they’ve deprived you of your life. Death penalty, when you did nothing wrong.”
So….if you refused to incriminate yourself, you would be convicted of a crime and given the same sentence as if you had been convicted of drunk driving. In other words, you are basically convicted of drunk driving because you wouldn’t incriminate yourself!
Another constitutional right slowly fades away….