The DUI Exception

[mrjarrell]

Ran across a piece by a defence lawyer on the DUI exception to the Constitution. MADD and their supporters have shredded the Constitution in the name of safety. Aided and abetted by the Nazgul at SCOTUS. Some courts have actually spat SCOTUS rulings back in their faces on this issue, but it's all too few. You have few rights in a DUI situation, all because of activist judges. This is a good read. (Yeah, the guy's a lawyer, but he has his head in the right place).

From DUICentral

Over the years I have expressed my belief that organizations such as Mothers Against Drunk Driving (MADD) are well-intentioned "true believers" — but believers who, like most zealots, have a rigid and narrow focus and who are ignorant of the harm they cause to others.
A few years ago, I was invited to give a lecture to a "think tank" of government, corporate and academic types expanding upon this view. In the years since then that I have given versions of the lecture to other groups, the legal and political situation has only grown worse.
Perhaps the lecture itself might better explain why I consider the activities of such organizations to be a continuing threat to our institutions and constitutional safeguards...
I hope to convince you in the next hour, some of you, that the greatest single threat to our freedoms, the freedoms set forth in the Bill of Rights, is not from Iraq or Iran. I don't think it's from North Korea. I don't think it's from the extremists of the Muslim world. The threat, as it has always been throughout history, is internal: It is from within. But I do not think it is terrorists or extremists on the right. I hope to convince a few of you that the greatest single threat to our freedoms today comes from a group consisting largely of American housewives. They call themselves the Mothers Against Drunk Driving. MADD.
I am fully aware that some of you belong to MADD. And I am certainly not here to make fun of them. Others of you here do not belong to MADD, but you have contributed to MADD and many more of you here, perhaps most of you here, are in complete sympathy with their goals and their activities. Many of you have had tragic losses at the hands of drunk drivers. But I hope to convince you in the next hour that you might want to reassess your view of that particular organization.
And I do not take them lightly in terms of their intentions. But we know that throughout history it is the well-intentioned zealots — those who believe strongly in the rightness of their cause — that are most willing to impose those ideas upon others. I do not, by the way, for a moment suggest that we should legalize drunk driving. I'm going to make that clear at the outset. But it is the true believer who is the greatest threat. And I should at the outset acknowledge my tremendous debt to Mr. Eric Hoffer who wrote the book, The True Believer. He was a longshoreman when I was going to school at Berkeley in the 60's. He did not have a high school education, but was teaching philosophy at the University of California at Berkeley and wrote this little jewel of a book that has been terribly influential in my own thinking.
I would like you to imagine for a moment that you've gone to a friend's house for dinner. In the course of a very good dinner you've had a couple of glasses of a good Merlot and it is now time to drive home. I would like you to imagine that you are on your way home — and, I will tell you, by the way, that two glasses of wine will not, in any state, put you under the influence of alcohol or over the legal limit of .08. As you are driving along the highway, you see ahead of you some flashing lights and barricades and police cars cordoned across the highway, with flashing lights directing you into an increasingly small channel. And, as you go in, you are stopped and two police officers approach you and stick a flashlight in your face and say, "Breath on me. Have you been drinking tonight? Please step out of the car."
Some of you say, "Well, that can't happen in the United States. We have the Fourth Amendment to the Constitution, which says police officers have to have probable cause to stop you. They have to have a reason to believe you've done something criminal before they can stop and detain you." And so said the Michigan Supreme Court in 1990 in the case of Sitz v. Michigan. The Court said, "The Fourth Amendment does not permit these types of roadblocks" — and reversed the DUI conviction. The case went up to the United States Supreme Court, unfortunately, and that august body decided that somewhere in the Constitution there is something called a "DUI Exception." And in a 5 to 4 vote sent it back to Michigan saying there is no violation here. What's interesting is that the Michigan Supreme Court — bless them, for there are fewer and fewer of them -- said, "Well, if you will not protect our citizens in the state of Michigan from this kind of police conduct, we will. And we again reverse the conviction and this time we rely upon our own state constitution."
The state of Washington and three other states have followed suit. In 44 states today, however, it is legal to stop you for absolutely no reason other than the fact that you are driving a car. The only purpose is to check you out for drunk driving.
You have been stopped, you have been taken out of the car and you have been handcuffed. You are placed in a police vehicle and you are on your way back to the police station. About this time you're probably wondering: I've seen this TV show somewhere — they're supposed to read me something aren't they? Something called Miranda? Aren't I supposed to have a right to an attorney? Don't I have the right to remain silent? That becomes an issue because, as you're being driven to jail, the officer's asking you all kinds of questions. Like, "Where have you been?" "Where are you coming from?" "How much have you had to drink?" "How long ago was it?" "When was the last drink?" "Do you feel the effects?" "Where are you now?" "What time of day is it?"
Well, again, a state Supreme Court said, "Hey, this person's handcuffed and under arrest, you've got to advise him of his constitutional rights under Miranda." And again, it went to the United States Supreme Court. In 1984 in Berkemer v. McCarty, the United States Supreme Court fooled around for about 20 or 30 pages of opinion and finally concluded that there was apparently a DUI exception to the constitution. And that, "Well, we really can't tell you when you're supposed to give Miranda in a DUI case. We do know that it is later than in other types of criminal investigations." So, the U.S. Supreme Court has told us we don't know when Miranda is supposed to be given in DUI cases, but it is clearly some time later than in other cases.
Well, about this time you arrive at the police station and the officer takes you into a room and there is this little metal box about the size of a desktop computer. And he says breathe in here. And you say, "Wait a minute, I have a right to an attorney. Can I make a phone call?" "No," says the officer. And, he's right. However, this denial of access to an attorney is only applicable in DUI cases. He's right. You're about to give the most incriminating evidence possible to give in a DUI case and you have no right to seek the advice of an attorney as to whether to breathe into that machine or, in the alternative, to agree to submit to a urine or a blood test.
And I'm only touching on a few of the problems. In California, for example, and in many other states, the law says you have a right to choose between breath and blood. It is your choice. We have discovered in California, however, through our own Supreme Court that when the officer doesn't give you that choice — just makes you breathe into that little black box — that's okay. They're not supposed to do it, but there's no remedy. There's nothing that can be done about it, so says the California Supreme Court. You can't suppress the evidence. Well, police are not stupid, so now about half of them simply don't give you that choice, since nothing is going to happen if they don't.
Your next thought is, I don't know if I trust that little machine. Maybe I should refuse to breathe into it. I think I'm okay because, because as I remember, there's a Fifth Amendment right in the United States Constitution that I don't have to incriminate myself, and, not only that, but if it goes to trial, the prosecutor can't even refer to the fact that I've exercised my Fifth Amendment right.

More at the source. A 5 page read, but worth the time.

 

[BtownBlaster]

An interesting read, so far. I whole heartedly agree with this attorney, the Constitution has been shredded when it comes to OWI, and we just seem to accept it. Implied consent is a joke, as the penalty for refusing a breath test is exactly the same as a misdemeanor OWI. Kinda makes a mockery of the ol' 5th Amendment, eh?

 

[serpicostraight]

i agree with all the points he brought up this whole owi is out of hand. i was arrested in may for owi while drinking and sitting in a parking lot and i was amazed at how the cops have conditioned people over the years to think thats a crime. almost every one said the same thing if the keys were in the ignition you are guilty and that is flat bs. luckily i had a judge that knew and abided by the law and was found not guilty. but it cost me my job atty fees insurance all kinds of stuff then i cant find an atty anywhere that will take the case to try to at least recover some of my expenses. if you ever get charged with owi plan on paying alot of money even if your innocent.

 

[tenring]

"Do you understand what I just read to you about your rights?"

"NO"

 

[czar996]

Very interesting read. He brings up some really good points. Even for a lawyer!

 

[Bubba]

I was starting to buy it but the last page is pretty biased. Coming from a lawyer specializing in DUI cases it seems like this document is intended to give hope to the accused and get them to hire this particular firm.

His facts seem pretty sound. I'm a little skeptical about his indignation at revoking licenses on page 5. I seem to recall that driving is a privilege granted by the State, and not a right that can be violated by revoking your DL. Also, it seems a bit out of date. I don't see portable BAC analyzers mentioned. Is it possible that the lateness of Mirandizing suspects was due in the past to the need to investigate whether a crime has been committed? If failing the stupid human tests is probable cause to detain and investigate, and the most accurate available testing device is at the police station, wouldn't it be a reasonable exercise of police power to transport a suspect to the station for testing before finalizing the arrest? Are DUI/OWI suspects Mirandized sooner now that we have widespread portable breathalyzers?

Not that I support writing laws specifically designed to increase the conviction rate for a particular accusation, or to block defenses based on bad investigative procedures (like a faulty breathalyzer). Nor do I support unchecked police authority. Still, if all it takes to avoid arrest is saying "no" why bother having cops?

 

[serpicostraight]

Are DUI/OWI suspects Mirandized sooner now that we have widespread portable breathalyzers? no they are not when i was arrested in may i was not read my rights at all until i went to court the next day.

 

[Indy317]

Are DUI/OWI suspects Mirandized sooner now that we have widespread portable breathalyzers? no they are not when i was arrested in may i was not read my rights at all until i went to court the next day.

The silly thing about this thread, is that the complaint is about when Miranda is read and when it applies. The complaint uses the Constitution as why not reading Miranda at a certain time is a violation. Guess what, I just read the bill of rights. Can someone point out to me the _requirement_ to give/read a person their rights? Sure, the rights are in there, but there is nothing about the government _telling_ people their rights. So while this thread wants to complain about Miranda readings when it comes to DUI investigations, it is just as easy to make make the same argument that the supreme court got it wrong when they ruled that suspects had to be read their rights. I don't see that in the Constitution at all.

Are DUI/OWI suspects Mirandized sooner now that we have widespread portable breathalyzers? no they are not when i was arrested in may i was not read my rights at all until i went to court the next day.

Guess I need to read upon the law. My understand was that for DUIs, the courts only ruled that Miranda doesn't apply while giving the driver the field sobriety tests. However, if a person is detained, so as they are not free to leave, I always was under the impression that Miranda applies when you deviate from field sobriety test questions. Also, Miranda only applies if you are asked questions about/specific to your crime. If an officer has PC to arrest a person for a crime, and they don't have any questions for the person arrested, they don't have to read them anything. They can just advise them they are being arrested for whatever charge and then being taken to jail.

 

[BtownBlaster]

Miranda rights are conferred by case law, Miranda v. Arizona, specifically. As to when a person needs to be Mirandized, we were always taught that it attached when a person was in custody and being questioned. The questioning need not concern the crime the officer is investigating, but any interaction. If a person is in handcuffs, it is readily apparent to a reasonable person that they are no longer free to leave, and any questioning without Miranda warnings would be tainted.

 

[cosermann]

He forgot to mention, "extremists on the LEFT."
They'll feel bad if they're left out.

 

[Jay]

Whatever happened to just stay out from behind the friggin' wheel of any vehicle when you've been drinking ??

Is it just me or is that premise NOT rocket science? If you're not smart enough to avoid drinking and driving, what makes you think you're smart enough to handle a firearm?

Drunks are much worse than any Vet with PTSD, and they consume many more innocent lives.

 

[public servant]

Whatever happened to just stay out from behind the friggin' wheel of any vehicle when you've been drinking ??

Is it just me or is that premise NOT rocket science? If you're not smart enough to avoid drinking and driving, what makes you think you're smart enough to handle a firearm?

I was going to post this yesterday...but felt it was too obvious. Glad you did.

If you want to drink and drive...then do so. Just do all of us a favor and don't kill those we love...I'd rather you wrap it around a light pole and do yourself in. I'd much rather you do this than endanger the life of my wife, daughter or grand-daughter.

And yes...if you're dumb enough to drink and drive...you're too stupid to own a firearm. A DUI conviction should keep you from getting a LTCH...you're not responsible enough.

And if you're dumb enough to endanger the lives of innocent people on the roadways...you should have no rights.

 

[public servant]

Also, Miranda only applies if you are asked questions about/specific to your crime. If an officer has PC to arrest a person for a crime, and they don't have any questions for the person arrested, they don't have to read them anything. They can just advise them they are being arrested for whatever charge and then being taken to jail.

This. I think Miranda should be printed on the back of you DL. That way you can read them while you're sober. Part of Implied Consent.

Some feel they have the right to be Mirandized at a certain time...not doing so violates their Constitutional rights and therefore they should walk...unscathed. I think I should have the right to not receive a telephone call stating my loved one was just murdered by some drunk.

Your rights should end where my reasonable expectations of health and safety begin. Unfortunately...it doesn't work like that.

 

[SC_Shooter]

Some feel they have the right to be Mirandized at a certain time...not doing so violates their Constitutional rights and therefore they should walk...unscathed. I think I should have the right to not receive a telephone call stating my loved one was just murdered by some drunk.

Your rights should end where my reasonable expectations of health and safety begin. Unfortunately...it doesn't work like that.

I've gotta agree with the notion that people should be held accountable for what they have actually done to cause harm to another party or that party's property. They should not walk based on some technicality. That was never the intent (at least I hope it wasn't) of the Miranda ruling, but it sure devolved into that pretty quickly. That's the problem with most well intentioned laws and court interpretations, but I'll avoid the blatant threadjack for now.

I've gotten that phone call in the wee hours notifying me that my favorite and closest cousin (a Georgia State Trooper) had been killed by a drunk driver who ran a stop sign and T-Boned his cruiser. It sucks, plain and simple and no one should have to field such a call if it can reasonably be avoided. I stress "reasonably" here because I also believe that the intent of OWI laws are to discourage people from drinking and driving (a good thing), while sometimes the execution and enforcement of those laws crosses a few lines. It happens in spite of best intentions.

Miranda should not be the OWI issue that the attorney is trying to make it to be. At the end of the day, if you DID something wrong you should pay the established penalty for it...if you DIDN'T, you should be left alone. You make the choice and you live with the outcome. Pretty simple.