Yes it is. Way Back When the anti-drunk driving follks had a very valid point. No doubt about it. (Just ask your dad how his generation felt about being caught DUI in say 1968.)
As a result of the hard work of MADD and other groups we have broken the back of the drunk driving problem. Most drunk driver I read about are driving on a suspended/revoked permit. Most of the bad guys have been identified. (I say this with no cite at all and admit I may be wrong.)
Now the BAC has been lowered and lowered again, almost as if there was desire to keep DUI arrests at some constant level. I myself think MADD has been taken over by a resurgent temperance movement.
The campaign against drunk driving has become something else. Like many other things in life it has gone too far for too long.
It is now part of the War on Drugs it has clogged and corrupted our law enforcement mechanism. It simply smacks of bluenosed puritanism. I no longer support it.
True – it was a VERY poorly worded response on my part. I should have learned by now that taking shortcuts here to save typing (or exposition) is never a winning move.
For what it’s worth, the presumption is a powerful prosecution tool. The jury instructions basically tell the jury (as they should) that they can find intoxication based only on that evidence. Without the presumption, you have a chance to bring up your own expert, and challenge each and every indication of intoxication.
But I should have been much more careful in what I said. My bad.
Paul in Saudi, I’d be very careful with posts like that which go beyond the general question into great debates territory.
In my view, this thread is discussing the general legal question of the relative penalties of refusing to take a breath test and taking one and failing, and how that would impact any possible future defense in the matter. It’s not advising about how to beat the law, but suggesting alternatives when faced with a particular situation. As far as I can see, each alternative would subject the accused to some legal penalty, though they may vary in severity.
In any U.S. prosecution, it is the burden of the government to prove that the accused is guilty. It is perfectly proper for an accused to require the government to go through all possible steps to get a conviction. Under some state laws, refusing the test will make it easier for the government to convict, while in others refusing will make it more difficult or lower the penalty.
Obviously, the first advice is and should be: “Don’t drink and drive, idiot.” Nonetheless, accused drunk drivers are entitled to legal representation. Similarly, I think it is a valid question for this board to address the general question posed by this hypothetical.
That all being said, I know damn little about drunk driving laws in New York or any other state, and nothing about how to answer this question.
Since we’re all chiming in with what it’s like in our jurisdiction, I’ll mention tht in Canada, refusal to give a breath sample, either at the road-side or at the station, is a criminal offence, as RickJay noted. It carries exactly the same penalties as the offences of impaired driving or driving over .08. (Those are two separate offences in Canada.) If convicted of any of these offences, you get a criminal record.
The Supreme Court has held that while you don’t have a right to consult counsel before blowing at the roadside, if you’re taken to the station you do have the right to consult counsel.
As others have commented, this is simply to contribute to discussion on a matter of public interest. If you need advice on Canadian law respecting impaired driving laws, consult a lawyer who works in that area.
Although I did not serve on the jury in this trial, I was in the juror pool and heard quite a bit about the case. The defendant was pulled over on suspicion of DWI. He refused to take a breathalyzer. He was given field sobriety tests; the results of the tests were inconclusive, but it was the opinion of the police officers that he was intoxicated. There was a rumor within the juror pool that the driver had previous DWI arrests; this information was not admissable as evidence. The defendant was found not guilty.
The defendant had a helluva lawyer whom I’m guessing was very well paid. Obviously it was worth quite a bit to the defendant not to get convicted. I can’t know what the defendant’s BAC was at arrest time, but if it was indeed over the limit, he wouldn’ve been convicted. Without the breathalyzer, there was reasonable doubt.
Paul, since this is the forum for facts, I should point out that drunk driving still accounts for a great percentage of traffic injuries and fatalities. The current level of traffic fatalies caused by drunk drivers is about 16,000 deaths per year in the United States. The number of licensed drivers caught driving drunk is still in the hundreds of thousands per year. Canadian statistics show a lower rate - about 900-1300 deaths per year, depending whose numbers you believe, still 30-40% of all traffic fatalities.
According to the NHTSA, drunk driving costs in 2000 were in excess of $50 billion, plus over 16,000 lives.