Should refusing a breathalizer be a crime?

[Ser Scot A Ellison]

Saw this in the year in review article on MSN:

http://www.usatoday.com/story/news/2015/12/11/supreme-court-drunk-driving-blood-alcohol-tests/77165668/

From the article:

WASHINGTON -- Can states charge motorists with a crime for refusing to take a breath test on suspicion of drunk driving when police lack a warrant? The Supreme Court will decide.

The justices agreed Friday to hear cases out of Minnesota and North Dakota in which drivers were charged with a crime after they refused to take "deep-lung" breath tests. Thirteen states make it a crime to refuse blood alcohol tests: Alaska, Florida, Hawaii, Indiana, Kansas, Louisiana, Minnesota, Nebraska, North Dakota, Rhode Island, Tennessee, Vermont and Virginia.

In addition, California, Mississippi, Missouri and Montana have considered such laws, according to lawyers for the challengers in the Minnesota case.

"Nationwide, it is certain that tens, and perhaps hundreds, of thousands of people are subjected to criminal penalties under these statutes every year — and if the arguments presented here are correct, the federal constitutional rights of all of these people are being infringed," their brief to the high court said.

I'm a little surprised this is only being couched as a 4th amendment warrantless search issue.  It would seem to me that requiring someone to take a breathalizer should also implicate 5th amendment self-incrimination issues.  I don't believe the State should have the power for force you to incriminate yourself so I hope the Supremes declare this unconstitutional.

[David Selig]

  I don't believe the State should have the power for force you to incriminate yourself so I hope the Supremes declare this unconstitutional.

Probably a dumb question, but would that mean that everyone would be able to drive drunk with impunity? if so, it doesn't seem like a good idea to me at all.

[Ser Scot A Ellison]

David,

Not at all.  There are administrative remedies such as suspending someone's driver's license if they refuse a breathilizer.  Further, you don't have to have a breathilizer to prove someone was driving under the influence or driving recklessly.  Dashcams can provide quite cogent evidence.

[NestorMakhnosLovechild]

Saw this in the year in review article on MSN:

http://www.usatoday.com/story/news/2015/12/11/supreme-court-drunk-driving-blood-alcohol-tests/77165668/

From the article:

 

I'm a little surprised this is only being couched as a 4th amendment warrantless search issue.  It would seem to me that requiring someone to take a breathalizer should also implicate 5th amendment self-incrimination issues.  I don't believe the State should have the power for force you to incriminate yourself so I hope the Supremes declare this unconstitutional.

The relevant portion of the 5th Amendment only says that "no person... shall be compelled in any criminal case to be a witness against himself." 

Breathalyzer evidence does not require you to be a witness against yourself. A person can take a breathalyzer test and never testify and still be convicted of, say, driving under the influence without their testimony. The idea that the 5th Amendment protects the collection of physical evidence off of someone is simply not supported by the text and, in practical terms, would be a disaster to our ability to prosecute crimes. If you shoot and kill someone at close range, are you seriously suggesting the police, as part of a custodial arrest, should not be able to collect blood splatter from your body? To examine your hands for the residue that accompanies are a firearm discharge? Or to check under your nails for evidence of a victim's DNA when they were strangled to death or scratched up? Of course not. 

[NestorMakhnosLovechild]

And while I'm on the subject, I'm not actually sure that the 5th Amendment prohibition against self-incrimination is actually defensible as a matter of principle. I think that there are practical reasons that this makes sense. And perhaps those practical reasons are enough to have the rule. But I think the idea that you can commit a crime and then have some nebulous right not to be asked questions about it in a courtroom, and not have any negative inferences drawn from that refusal, is highly suspect. I obviously don't practice criminal law - only civil. And when you "plead the 5th" in a civil case, the fact finder can draw all sorts of inferences, usually negative, against you by doing so. And if you've ever SEEN someone "plead the 5th" in a civil case - well, it's pretty clear that, as a matter of fact, it's RIGHT for the fact finder to draw those negative inferences against them, because they are generally just trying to escape criminal liability for their behavior. 

[Ser Scot A Ellison]

Nestor,

Interesting.  So you would permit juries to use refusal to testify as a negative inference against a criminal defendant?  Practically speaking the negative inference already exists in the minds of many jurors despite Courts instructions to the contrary.

As to this case I do see your point regarding the 5th and how this isn't the same thing as requireing incriminating testimony.  My thought was that as with the 1st amendment freedom of speech it covers more than mear speech.  That said, I've been wrong before.

However, this is the State, at a minimum, by-passing the warrant requirements of the 4th amendment by making the refusal to accede to a breathalyzer a criminal act unto itself.  What is your take on that aspect?

[Fez]

I think the way New York at least (and probably a lot of other states too) do it is the right method; don't make it a crime, but make it a licensing requirement. If you refuse the test you lose your license one year on your first offense and 18 months for later offenses; plus there's a 'reinstatement fee' of $500 and then $750. That isn't as bad as a DUI conviction, which is up to one year jail time and/or up to a $1000 fine plus a six month license suspension for the first offense (the numbers go up after that). But there's a good chance you'd get convicted for the DUI anyway based on officer testimony and your refusal to be tested. And in a lot of cases, for a first offense if your BAC is too much above the legal limit, you probably won't get any jail time (obviously this changes if there was an accident and there are other charges too). Which means the refusal often carries a worse punishment than the conviction anyway.

I'm not a lawyer. This isn't advice.

[Arch-MaesterPhilip]

David,

Not at all.  There are administrative remedies such as suspending someone's driver's license if they refuse a breathilizer.  Further, you don't have to have a breathilizer to prove someone was driving under the influence or driving recklessly.  Dashcams can provide quite cogent evidence.

What if my blood sugar suddenly gets low when I'm behind the wheel and an officer pulls me over because I'm driving recklessly and he believes I'm intoxicated and he or she asks me to exit my vehicle and the dash cam shows me stumbling around?

[Ser Scot A Ellison]

AMP,

Agree to the breathalyzer?

[zelticgar]

So those states that are listed above can force someone to take a breathalyzer? I guess I prefer the process that most states use, give them the choice and if they refuse they lose their license. In my state the majority of first time offenders get a slap on the wrist and get to keep driving on hardship exemptions.It does cost a not insignificant amount of money in legal, court fees, registry fees and increased insurance cost. I'd personally like to see those costs go even higher because I think people get off pretty lightly.

Freakanomics did an interesting podcast one time talking about the easiest way to get away with killing someone and concluded one of the best ways to get away with killing was to use your car. Even drunk drivers who kill people tend to get off relatively easy.

 

 

 

[OldGimletEye]

Probably a dumb question, but would that mean that everyone would be able to drive drunk with impunity? if so, it doesn't seem like a good idea to me at all.

The article doesn't say, but the issue, I think, is whether it's constitutional to charge a crime for refusing a breathlyzer test when the police only have reasonable suspicion, as opposed to probable cause. The court may very well allow refusing a breathlyzer to be crime so long as the police can meet the probable cause standard as opposed to a reasonable suspicion standard.

 

 

[Arch-MaesterPhilip]

AMP,

Agree to the breathalyzer?

My sugar once got so low behind the wheel to the point of me starting to black out. I count myself lucky that I didn't hurt or kill someone before pulling off the highway to fix it before passing out. I'm not sure I'd have been able to speak let alone step out of my car, fork over my papers, step out my car, stand and then blow into a breathalyzer to prove I'm not drunk.

[NestorMakhnosLovechild]

Nestor,

Interesting.  So you would permit juries to use refusal to testify as a negative inference against a criminal defendant?  Practically speaking the negative inference already exists in the minds of many jurors despite Courts instructions to the contrary.

As to this case I do see your point regarding the 5th and how this isn't the same thing as requireing incriminating testimony.  My thought was that as with the 1st amendment freedom of speech it covers more than mear speech.  That said, I've been wrong before.

However, this is the State, at a minimum, by-passing the warrant requirements of the 4th amendment by making the refusal to accede to a breathalyzer a criminal act unto itself.  What is your take on that aspect?

Scott,

I'm open to persuasion otherwise on this issue, but right now I'd suggest that juries should be instructed that a Defendant's refusal to testify can be considered against them as a negative inference. As you've indicated, we know for a fact that juries already consider it despite the instruction against it, and despite prohibitions against Prosecutor's saying anything about it. I think we're doing a disservice to our justice system by continuing to ignore this fact. Either we need to double-down on juror education about the 5th Amendment, or we just need to open up the issue for consideration by juries and let Defendants and their attorneys figure out how best to handle it.

 

As for there being separate criminal offenses for refusing a breathalyzer - I guess I think that's probably wrong. I'm not sure I'm convinced it's unconstitutional, although I guess it might be. I think the best way to handle it is for a refusal to take a breathalyzer to act as a negative inference about the test. If you refuse it, juries should be instructed to assume it would have blown above the legal limit. 

 

[Ser Scot A Ellison]

AMP,

I have a friend who was charged with reckless homicide when he had a seizure while driving.  He was properly medicated and had been given leave to drive by his physician.

[Arch-MaesterPhilip]

AMP,

I have a friend who was charged with reckless homicide when he had a seizure while driving.  He was properly medicated and had been given leave to drive by his physician.

I'm afraid of something like that happening since I  have epilepsy on top of diabetes.  

[Ser Scot A Ellison]

AMP,

I don't know what to tell you.  It can happen.  It took two years to get the case against my friend dropped. 

[Astromech]

I prefer the use of administrative remedies to suspend licenses under implied consent laws as opposed to making refusal a criminal offense. I personally feel refusal to the take the test is no different than remaining silent as opposed to speaking to police officers, regardless of what different jurisdictions have ruled.

[Seli]

What if my blood sugar suddenly gets low when I'm behind the wheel and an officer pulls me over because I'm driving recklessly and he believes I'm intoxicated and he or she asks me to exit my vehicle and the dash cam shows me stumbling around?

Isn't driving under the influence of a preventable/treatable (acute) medical condition prohibited as well? I would say an officer would be right to stop you, and the courts right to take sanctions. 

[Arch-MaesterPhilip]

Isn't driving under the influence of a preventable/treatable (acute) medical condition prohibited as well? I would say an officer would be right to stop you, and the courts right to take sanctions.

I'm not sure to be honest.  I knew a guy who got arrested because the police thought he was drunk but his blood sugar was dangerously low and he wound up suing the City.  

[Seli]

I'm not sure to be honest.  I knew a guy who got arrested because the police thought he was drunk but his blood sugar was dangerously low and he wound up suing the City.  

That seems weird. But very much possible. Legislation on technicalities while ignoring the goals and reasons definitely is a thing.