Is this evidence of Constitutional rights erosion?

Hey all, I really wanted someone else’s perspective on this. It was sent to me by an attorney friend of mine who is an advocate for amending current DUI laws. I am going to quote from his blog, but in the meantime, is there ANY validity to this?

"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.

http://www.duiblog.com/2009/12/05/who-cares-about-the-rights-of-those-accused-of-dui/

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……” "

After reading this twice, I still couldn’t believe that this was true. So I ask again, is there any validity to this? Are the rights of DWI arrestees being violated? Are there exceptions to Constitutional law in these cases?

Oh, and one more question. Isn’t it a fundamental right to have an attorney present? And yet after being arrested for DUI, and being Mirandized, you are not allowed to have one present before being asked to submit to a breath test.

FTR, my drivers license is intact. :smiley:

I think it’s accurate to say DUI enforcment is eroding our rights, when police are allowed to have checkpoints and stop travelers without probable cause.

If you think someones rights are being diminished, the people to discuss this with are your elected officials.

The only one that troubles me of the list above it the lack of a trial by jury of peers. But if the Supreme court says that a six month jail term is only a petty crime, the only way to change that is to change the applicable laws/amendments.

5th Amendment still applies. You can forego a breath test and sacrifice your license and no one is going to make you talk. License is a privelege not a right. By having a license you agree to the terms, one of which is to submit to a breath test on demand.

Statistically “reasonable suspicion” can be accomplished by the time of day as long as the number of drunk drivers at that time of day is of statistical significance. Yes, you are suspect just because you are driving just after the bars close.

There is no need to save a sample if a proper scientific data collection was performed on it. The evidence is not the breath, but the test results. You can always challenge the validity of the results…but good luck.

Actually, that doesn’t apply here. ""The claim and exercise of a constitutional right cannot be converted into a crime.· - Miller v. U.S., 230 F 2d 486, 489. But to exercise that right in this case IS considered a crime as you’re automatically assumed guilty by refusing the breath test.

I’m ALL for getting the drunks off the road, but I’m also for protecting people’s rights. This DUI thing falls into a hazy area, methinks.

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Statistically “reasonable suspicion” can be accomplished by the time of day as long as the number of drunk drivers at that time of day is of statistical significance. Yes, you are suspect just because you are driving just after the bars close.
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statistically speaking, blacks are more likely to commit crime than whites. Maybe we should stop and question all black people as well?

Try that argument again when being black is a privelege some people choose to exercise like driving a motor vehicle is.

And the number of drunk drivers on partiular roads (they cannot set these road blocks up randomly, they have to choose locations with a higher chance for having drunk drivers) at particular times (bar closings) is a very significant percentage.

The argument the court has made in these cases, which you can agree or disagree with, is essentially this: A drunk driver is an IMMEDIATE threat to the public safety. Therefore it is qualitatively different from, say, a suspect in a robbery. The constitution forbids “unreasonable” search and seizure, and the courts have ruled that if an imminent danger is present, neither a warrant nor probably cause is necessary, because it is reasonable to prevent an imminent injury.

Hey Suranyi, I hear what you’re saying, and that court decision does make sense, but it seems like profiling a bit. And the only worry I have is this kind of decision does set a legal precedent to screw us over in other areas of the law. That’s all I’m worried about. Thanks for the replies. And you too, Pan and Mr. Lahey!

Even taking the list of erosions as they’re given, I’m mixed. Operating a two-ton vehicle at deadly speeds on public roads is a privilege, not a right. In my mind, theoretically, requiring breath tests before driving anywhere anytime on public roads isn’t in itself a Constitutional issue, as long as the testing can’t be used to look for evidence of any other crimes. But of course, in practice, that’s probably not the case.

But then again, another way to look at it is if we’re willing to give up all our civil liberties and moral values to stop terrorists, we should be far more willing to give them up to stop drunk drivers. After all in 2001, drunk drivers killed about as many U.S. residents as terrorists did. And the drunk drivers did it again in 2002, and 2003, and 2004, and 2005…

I think it’s OK that a DUI roadblock could be used to to revoke your license, which is a privilege. Using it to file criminal charges seems to go too far.

How about completely preventing DUI? Make the alco-lock thing that they connect to the ignition of cars (blow into the breathalyzer and have it come back negative for alcohol before the car will start) standard. I don’t think that’s any less reasonable than requiring auto insurance before issuing a registration.

How about punshing people who actually cause accidents instead of behaviour that MIGHT cause an accident? Criminal negligence would include accidents caused by duis, texting , putting on makeup etc. We don’t need laws for every little behaviour that could possibly result in bad consequences.

Your attorney friend needs to review his crim pro outline. Submitting to a breathalyzer is not the same thing as being compelled to give incriminating testimonial evidence. There is no constitutional right to abstain from taking a breathalyzer, or to withhold any other real or physical evidence, without imperiling your license.

There are such ignition interlocks available, and in some cases Judges have required chronic DUI offenders to have them installed in their car if they want their driving privileges restored early.

Nothing special there.
Here in Minnesota, any misdemeanor (max punishment less than 1 year in jail) can be tried before a Judge only, without a jury. And I believe gross misdemeanors can be tried with a 6-person jury rather than 12.

Good point, I’ll have to contact him about this as it sounds like you know your legal stuff. But I’m confused about another issue. The cop is arresting you for DUI, he reads you your Miranda rights which includes ‘You have the right to have an attorney present now and during any future questioning’ and so you head down to the police station and say to the cop: "Hey, before I blow into that machine and give you damning evidence, I want my lawyer present. The officer refuses this until you blow or refuse. How can he advise you of your rights and then you are denied them?

Again, assertion of your Fifth Amendment right only terminates the interrogation. The police are not required to provide you with an attorney (unless they want to resume questioning). An attorney is not required until adversarial judicial proceedings have commenced (typically at arraignment). The Fourth Amendment allows the collection of ephemeral physical evidence, such as the bodily metabolites of alcohol, without a warrant because of their short life, so long as there is probable cause to do so.

The thing boils down to courts will always consider driving a privilege thus getting around andy “right” arguement.

I can see how it comes about but I don’t really agree, but then who am I right?

I think in today’s age, the need to drive is a right. Since we definately have a right to travel around to anywhere we want in the nation, the fact that planes can’t and trains no longer carry much passenger service, that cars by default have becme the only way to reach places. OK I guess you could walk. Even bikes have limitations.

But those aren’t realisitc options. But the courts cop an easy way out with drunk drivers.

The problem futher lies is the courts like logic, but drunk driving doesn’t always follow logic. For instance, drunk drivers are a threat. Perhaps, certainly drunk drivers aren’t in control of their vehicals compared to others, but the fact is there are lots of drunk drivers who do drive and don’t get into accidents.

So they are lucky? Perhaps, maybe definately lucky. If all it took to injure people with a car was a person being drunk we’d see a ton more accidents than we have.

But when you say this, you get slammed with the argument, even ONE is too many. And I’d agree.

Look at the argument, when we raised the drinking age the number of teen accidents in cars fell. Yes it did. So why not raise the drinking age to 30? It would save lives. Isn’t even ONE enough apply here. Apprarently not.

Courts will always fall back on the privilege aspect of it, whether it really applies or not.

Thanks Kimmy for the clarification. I just received an email from my attorney advocate friend and he told me he is WELL aware of the current statutes and precedents you spoke of. That wasn’t his point. His point was that it’s only in DUI cases where the law has been manipulated at the highest levels so as to erode our Constitutional rights. It’s been a slow process, he says, but nonetheless evident.
He calls it ‘The DUI Exception to the Constitution’.

To Markxxx: If someone causes an accident/property damage while texting on their cell phone, do you believe their license should be suspended?