Who Cares About Drunk Driving Suspects?

Posted by Lawrence Taylor on July 2nd, 2013

For 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 just 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 was no Sixth Amendment right to a jury trial in a Nevada drunk driving case.

California v. Trombetta. Although police normally have to save evidence, they do not have to save breath samples — by far the most important evidence in a DUI case — for defense re-analysis (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, is already already happening). 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 by the police without prior review of the evdience; double jeopardy/punishment (DMV license suspension and criminal prosecution); so-called per se laws (.08% blood-alcohol is illegal, even if the driver is not impaired); presumption of guilt (if .08%, the driver is presumed to be under the influence — even if he is not; if .08% when tested, he is 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 a famous quote about the Jews in Nazi Germany, "First they came for the drunks, but I was not a drunk so I did not speak up….."

  • Andre Smith

    As someone who recently pleaded out a DUI charge in CA, I totally feel your points on this one. FWIW, my BAL was .19% (not BrAC), so there was no way I was wiggling out of that one. I’m not even going to deny being a “problem drinker” you keep mentioning in your posts. I AM working on it, because I know that I have a problem.

    That being said, you’re absolutely right when you say it’s far easier for the courts to side with the prosecution when it comes to DUI cases for political/career reasons.

    Don’t even get me started on the penalties even for first offenders that often exceed the sentences for many misdemeanors and some low-level felonies.

    I can understand paying the fine and the sky-high SR-22 insurance for at least three years. You pay to play.

    On the other hand, when someone cannot drive a vehicle legally for 5 months unless they are going straight to the DUI class/work/school (assuming 1mo suspension and then a restricted license), that’s one step short of a total house arrest in the vast majority of USA.

    At my work, there are NO food places within a reasonable walking distance, so I get to break the law every single time I drive half a mile to grab a decent lunch. Ditto the above for my home. My choices are down to Taco Bell, Subway, and the liquor store in-between if I want to walk.

    Of course, I’m driving someone else’s car with clean plates, so I just get to drive carefully and flip the bird under the dashboard every time I see a police car. Same for weekends – I don’t have an endless supply of friends to bum rides off of (not that I would want them to know I caught a Dewey unless I met them in my DUI class).

    Now that the neo-prohibitionists want to bring the DUI cut-off down to .05, come to think of it – I’m all for it. Every cop that spends 2-3 hours writing up and booking some poor shmuck who blows a .05 is a cop I don’t need to worry about it.

  • Bob Wiley

    I came across this article. Thought you might be interested in this story.


  • Art

    When Hitler came for the Jews, I wasn’t afraid- because I wasn’t Jewish.
    Then, when he came for the Catholics, I wasn’t afraid, because I wasn’t Catholic.
    And then when Hitler came for the gays, I also wasn’t afraid, because I was not gay.
    But when Hitler came for the first-time, no victim, not impaired DUIs based solely on BAC? Then I WAS afraid- because by that time there were no survivors to come to me defense…

    First time misdemeanor DUI, was not impaired, was sleeping in my vehicle. It cost me a 25 year nursing career (the BON took my license), and will be hanging over my head like a guillotine for the rest of my (unemployable) life.

    Welcome to Germany. I mean America.

  • Art

    America has been ‘awash’ in alcohol since the beginning. Alcohol always has been, and is one of our favorite pastimes. The majority of Americans drink alcohol, as shown by polls (and by ever-increasing dependency on alcohol tax revenues and D.U.I. fines) and many of these same people freely admit to driving after drinking, and in fact admit to driving while being impaired either by alcohol, or other drugs.
    Implausibly, those same polls also consistently report that this very same majority naively believes that D.U.I. penalties represent a “slap on the wrist”, and need to be far more severe, despite the stark reality that in many cases D.U.I. penalties are far more harsh and far- reaching than penalties for many violent crimes such as assault, and robbery. D.U.I laws have gone so far out of control, in fact, as to have taken on lives of their own.
    About 1.5 million Americans are arrested for D.U.I. every year, and their lives are torn asunder with penalties that can last a lifetime. The N.H.T.S.A. concluded in a study, however, that for every D.U.I. arrest there are between 772 and 2000 additional episodes of illegal drinking and driving, meaning an additional 1.2 billion D.U.I. offenses are committed by drivers every year, but they have not been caught-YET.
    If you are part of the tragically misinformed majority who is clamoring to increase DUI penalties, I say to you: “Be careful what you wish for”…