The DUI exception to the constitution

[Zeus]

That is it in a nutshell.   

The author does have the right to not drive however, especially if he drank a few glasses of merlot at his friend's house and think that doesn't compromise his ability to drive.

It was only two glasses of wine..... dude, I am an e-x-c-e-l-l-e-n-t driver......

As you read the article it is plain to see that the Author is not defending drunk driving. Rather he is questioning the the loss of constitutional protections just on the assumption of driving under the influence ,actually having had a drink within the last couple hours.

[FlaGator]

The DUI and license laws vary from state to state. I can speak to the law of Florida. My license has be suspended/revoked for 10 years due to 3 DUIs over a 26 year period. I am not complaining and believe that I deserve the punishment for my stupidity and arrogance. Once the ticket has been issued your license is taken. You may use the ticket the office gave you as a license for 10 days. You can appeal to the DMV but if they deny you after 10 days you can drive. You go to court or plead. If you are found not guilty you get you license back. If found or plead guilty you lose your license form 6 months to forever depending on how many DUIs you have. If it is your second DUI you can apply for a hardship license after 1 year. If it is your third DUI you can apply for a hardship license after 2 years. Either why you have to have a interlock device (breathalyzer) on your car for at least 1 year and up to 2 years.

For the record, I have not driven for 2 and 1/4 years. I have applied for my hardship license but the process takes from 6 weeks to 4 months.

[formerlurker]

As you read the article it is plain to see that the Author is not defending drunk driving. Rather he is questioning the the loss of constitutional protections just on the assumption of driving under the influence ,actually having had a drink within the last couple hours.

I did read it, and the premise of his argument is flawed.   DUI is a traffic offense that is a felony.  SCOTUS has upheld roadblocks as a reasonable expectation of law enforcement to regulate traffic safety.   

Two glasses of wine for some is fine, for others it seriously impedes their judgement and reaction time.     Drunks don't usually admit or reconize they are too impaired to drive.  I am not a doctor, but I will guess it may have something to do with the alcohol.   

Driving is not a right.    The really over the top "breath on me" of the implied rogue cops is comical.   

CA has roadblocks to look for illegal aliens.  That has nothing to do with traffic safety, and I would have to agree that dances on the side of an unconstitutional search.

[FlaGator]

I did read it, and the premise of his argument is flawed.   DUI is a traffic offense that is a felony.  SCOTUS has upheld roadblocks as a reasonable expectation of law enforcement to regulate traffic safety.   

Two glasses of wine for some is fine, for others it seriously impedes their judgement and reaction time.     Drunks don't usually admit or reconize they are too impaired to drive.  I am not a doctor, but I will guess it may have something to do with the alcohol.   

Driving is not a right.    The really over the top "breath on me" of the implied rogue cops is comical.   

CA has roadblocks to look for illegal aliens.  That has nothing to do with traffic safety, and I would have to agree that dances on the side of an unconstitutional search.

DUI is generally not a felony unless extenuating circumstances are involved.

[formerlurker]

You know the operator of the vehicle can avoid the road block altogether by seeking alternative routes.   It really doesn't take a rocket scientist to figure out where they will be, and on what weekdays/weekends.  My state readily announces them with locations.    

Unless of course you think it is your God given right to drive on whatever road you damn well please without being harrassed by the pigs for those two glasses of fine Merlot you drank at your friends house......  you know better than the police what constitutes traffic safety, and surely you aren't one of them.  

Seriously?

[formerlurker]

DUI is generally not a felony unless extenuating circumstances are involved.

You are right, I thought it was in MA, but it is only after the third offense.   

Note -- although the first is punishable by jail, and the accused does have a right to jury trial, public defender.

[Zeus]

I did read it, and the premise of his argument is flawed.   DUI is a traffic offense that is a felony.  SCOTUS has upheld roadblocks as a reasonable expectation of law enforcement to regulate traffic safety.   

Two glasses of wine for some is fine, for others it seriously impedes their judgement and reaction time.     Drunks don't usually admit or reconize they are too impaired to drive.  I am not a doctor, but I will guess it may have something to do with the alcohol.   

Driving is not a right.    The really over the top "breath on me" of the implied rogue cops is comical.   

CA has roadblocks to look for illegal aliens.  That has nothing to do with traffic safety, and I would have to agree that dances on the side of an unconstitutional search.

Read it again DUI laws are not about driving. See that's the thing rights & protections otherwise afforded a person under suspicion of any other crime are not in existence if suspected of DUI.

It just truly amazes me the number of folks that are ok with lose of legal protections, rights, priveledges of others because they mistakenly think it does not & will not affect them. History is replete with examples of that not being the case.

[Chris_]

You are right, I thought it was in MA, but it is only after the third offense.   

Note -- although the first is punishable by jail, and the accused does have a right to jury trial, public defender.

New Law here in CA -- people on probation for DUI have an allowable BAC of -- zero.  Even one drink -- one SIP -- and citation, license suspension, car impounded and probably public flogging.

[FlaGator]

You are right, I thought it was in MA, but it is only after the third offense.   

Note -- although the first is punishable by jail, and the accused does have a right to jury trial, public defender.

In Florida it works like this (basically)
1st Lic Revoke 6mo to 1 year (mis) up to 10 days in jail
2nd Lic Revoke 1 year to 5 years (mis) 10 days in jail (mandatory)
3rd Lic Revoke 1 year to 10 years (mis or fel) 30 days in jail (mandatory)
4th Lic Revok Perm,  (fel) up to 5 years prison

modifications

If a minor is in the car then 1st offense can be a felony up to 5 years in prison
If 2nd or greater and minor in car is a felony up to 5 years in prision.

blood alcohol level .2 or greater
2nd offense can be fel
3rd offense is fel

I got very aquainted with these laws and the nuances a couple of years ago.

[Zeus]

In Florida it works like this (basically)
1st Lic Revoke 6mo to 1 year (mis) up to 10 days in jail
2nd Lic Revoke 1 year to 5 years (mis) 10 days in jail (mandatory)
3rd Lic Revoke 1 year to 10 years (mis or fel) 30 days in jail (mandatory)
4th Lic Revok Perm,  (fel) up to 5 years prison

modifications

If a minor is in the car then 1st offense can be a felony up to 5 years in prison
If 2nd or greater and minor in car is a felony up to 5 years in prision.

blood alcohol level .2 or greater
2nd offense can be fel
3rd offense is fel

I got very aquainted with these laws and the nuances a couple of years ago.

Dunno if it's a matter of difference in Laws or difference in attorneys. Few yrs back (8 - 10) one of my brothers got stopped outside of Las Cruses NM. Was cited for DUI(3rd offense),driving under suspension, expired registration and a couple other moinor vehicle citations. He spent a total of about 2 hrs in jail had to pay $300 in fines and agree to attend AA meetings.

[FlaGator]

Dunno if it's a matter of difference in Laws or difference in attorneys. Few yrs back (8 - 10) one of my brothers got stopped outside of Las Cruses NM. Was cited for DUI(3rd offense),driving under suspension, expired registration and a couple other moinor vehicle citations. He spent a total of about 2 hrs in jail had to pay $300 in fines and agree to attend AA meetings.

In Florida they have recently tightened up the laws. When I pled a little over 2 years ago for my 3rd, I was given the minimum sentence due to the long intervals been DUIs. I lost my license for 10 years, 30 days in jail, 2 years with an interlock device, drug and alcohol counciling, DUI school, 1 year probation 1250 in fines and court costs. All in all counting lawyer, insurance, etc  my total costs are at $25,000 and counting.

[formerlurker]

Read it again DUI laws are not about driving. See that's the thing rights & protections otherwise afforded a person under suspicion of any other crime are not in existence if suspected of DUI.

It just truly amazes me the number of folks that are ok with lose of legal protections, rights, priveledges of others because they mistakenly think it does not & will not affect them. History is replete with examples of that not being the case.

SCOTUS has found that you have the less of an expectation of privacy while operating a motor vehicle on a public way than you do walking down the street, or sitting in your house, or operating a vehicle on a private road.      

You are in the process of operating a vehicle on a public road, which is subject to traffic regulations.    A road block is not singling one driver out.  The police have shut down the public roadway.  In order to pass with your vehicle, you must demonstrate that you are properly operating your vehicle, and are adhering to traffic codes, which includes DUI.   The minute you started your vehicle up, you (the driver) are subject to inspection by law enforcement.  Once reasonable suspicion that you are intoxicated is made, your vehicles becomes eligible for inspection (inventory search).    

The basis of his argument is the two glasses of Merlot, as Sally sunshine who sipped gingerale all night isn't having any problems with the road block.    The administration of a sobriety test is absolutely warranted on every level in that instance.  

You do not have to submit to a breathalizer, however you will lose your license.  Why?  because you do not have a right to that license.   A driver's license is a priviledge that comes with stipulations which include subjecting yourself to random roadblocks, inspections, and yes, blowing into a machine to see if you are intoxicated.    A commercial driver's license holder has to submit to drug testing/medical exam every year to maintain their license.  Is that unconstitutional?   Of course not.  

The criminal process that plays out once DUI has been determined is the same as any other crime.  

His reasoning is self-serving to the extreme, as are most Libertarian arguments.    You have the right to life, liberty and the pursuit of happiness, but operating a vehicle on a public roadway is not one of them unless you adhere to rules -- as your happy hour could result in the ending of someone's life, liberty and pursuit of happiness.   So that crap ain't going to fly.  

  

[formerlurker]

Also add, that a big rig truck driver is subject to being pulled over at any given time to inspect his vehicle and look at his driving log.   The driver does not have the option to refuse  the request.   Reasonable suspicion not a requirement at all. 

Driving is not a right.   It is a priviledge given to you by society, who made a whole bunch of rules that dictate how, when, and where you can drive.   It is that simple. 

[Zeus]

SCOTUS has found that you have the less of an expectation of privacy while operating a motor vehicle on a public way than you do walking down the street, or sitting in your house, or operating a vehicle on a private road.      

You are in the process of operating a vehicle on a public road, which is subject to traffic regulations.    A road block is not singling one driver out.  The police have shut down the public roadway.  In order to pass with your vehicle, you must demonstrate that you are properly operating your vehicle, and are adhering to traffic codes, which includes DUI.   The minute you started your vehicle up, you (the driver) are subject to inspection by law enforcement.  Once reasonable suspicion that you are intoxicated is made, your vehicles becomes eligible for inspection (inventory search).    

The basis of his argument is the two glasses of Merlot, as Sally sunshine who sipped gingerale all night isn't having any problems with the road block.    The administration of a sobriety test is absolutely warranted on every level in that instance.  

You do not have to submit to a breathalizer, however you will lose your license.  Why?  because you do not have a right to that license.   A driver's license is a priviledge that comes with stipulations which include subjecting yourself to random roadblocks, inspections, and yes, blowing into a machine to see if you are intoxicated.    A commercial driver's license holder has to submit to drug testing/medical exam every year to maintain their license.  Is that unconstitutional?   Of course not.  

The criminal process that plays out once DUI has been determined is the same as any other crime.  

His reasoning is self-serving to the extreme, as are most Libertarian arguments.    You have the right to life, liberty and the pursuit of happiness, but operating a vehicle on a public roadway is not one of them unless you adhere to rules -- as your happy hour could result in the ending of someone's life, liberty and pursuit of happiness.   So that crap ain't going to fly.  

  

We must have read different articles.Rules of evidence, gathering of that evidence and so n so are out the door for suspicion of DUI. Procedures the police must following are disregarded because there is no recourse if they don't etc etc.

This,to me anyway,is more than keeping drunks off the road it's erosion of rule of law,innocent until proven guilty, equal protection under the law.

Again I am not defending or excusing drunk driving. I am concerned that the state if it can do it to Bob it can & will do it to you or me.

[formerlurker]

We must have read different articles.Rules of evidence, gathering of that evidence and so n so are out the door for suspicion of DUI. Procedures the police must following are disregarded because there is no recourse if they don't etc etc.

This,to me anyway,is more than keeping drunks off the road it's erosion of rule of law,innocent until proven guilty, equal protection under the law.

Again I am not defending or excusing drunk driving. I am concerned that the state if it can do it to Bob it can & will do it to you or me.

Because that is all bullshit.  Once DUI has been determined, the criminal process plays out as it would any other crime.

Held:

1. A person subjected to custodial interrogation is entitled to the benefit of the procedural safeguards enunciated in Miranda, regardless of the nature or severity of the offense of which he is suspected or for which

Page 468 U. S. 421

he was arrested. Thus, respondent's statements made at the station house were inadmissible, since he was "in custody" at least as of the moment he was formally arrested and instructed to get into the police car, and since he was not informed of his constitutional rights at that time. To create an exception to the Miranda rule when the police arrest a person for allegedly committing a misdemeanor traffic offense and then question him without informing him of his constitutional rights would substantially undermine the rule's simplicity and clarity, and would introduce doctrinal complexities, particularly with respect to situations where the police, in conducting custodial interrogations, do not know whether the person has committed a misdemeanor or a felony. The purposes of the Miranda safeguards as to ensuring that the police do not coerce or trick captive suspects into confessing, relieving the inherently compelling pressures generated by the custodial setting itself, and freeing courts from the task of scrutinizing individual cases to determine, after the fact, whether particular confessions were voluntary, are implicated as much by in-custody questioning of persons suspected of misdemeanors as they are by questioning of persons suspected of felonies. Pp. 468 U. S. 428-435.

2. The roadside questioning of a motorist detained pursuant to a routine traffic stop does not constitute "custodial interrogation" for the purposes of the Miranda rule. Although an ordinary traffic stop curtails the "freedom of action" of the detained motorist and imposes some pressures on the detainee to answer questions, such pressures do not sufficiently impair the detainee's exercise of his privilege against self-incrimination to require that he be warned of his constitutional rights. A traffic stop is usually brief, and the motorist expects that, while he may be given a citation, in the end, he most likely will be allowed to continue on his way. Moreover, the typical traffic stop is conducted in public, and the atmosphere surrounding it is substantially less "police dominated" than that surrounding the kinds of interrogation at issue in Miranda and subsequent cases in which Miranda has been applied. However, if a motorist who has been detained pursuant to a traffic stop thereafter is subjected to treatment that renders him "in custody" for practical purposes, he is entitled to the full panoply of protections prescribed by Miranda. In this case, the initial stop of respondent's car, by itself, did not render him "in custody," and respondent has failed to demonstrate that, at any time between the stop and the arrest, he was subjected to restraints comparable to those associated with a formal arrest. Although the arresting officer apparently decided as soon as respondent stepped out of his car that he would be taken into custody and charged with a traffic offense, the officer never communicated his intention to respondent. A policeman's unarticulated plan has no bearing on the question whether a suspect was "in custody" at a particular time; the

Page 468 U. S. 422

only relevant inquiry is how a reasonable man in the suspect's position would have understood his situation. Since respondent was not taken into custody for the purposes of Miranda until he was formally arrested, his statements made prior to that point were admissible against him. Pp. 468 U. S. 435-442.

3. A determination of whether the improper admission of respondent's postarrest statements constituted "harmless error" will not be made by this Court for the cumulative reasons that (i) the issue was not presented to the Ohio courts or to the federal courts below, (ii) respondent's admissions made at the scene of the traffic stop and the statements he made at the police station were not identical, and (iii) the procedural posture of the case makes the use of harmless error analysis especially difficult, because respondent, while preserving his objection to the denial of his pretrial motion to exclude the evidence, elected not to contest the prosecution's case against him and thus has not yet had an opportunity to try to impeach the State's evidence or to present evidence of his own. Pp. 468 U. S. 442-445.

716 F.2d 361, affirmed.

http://supreme.justia.com/us/468/420/

A tad bit different than what the author asserts.

[Zeus]

Because that is all bullshit.  Once DUI has been determined, the criminal process plays out as it would any other crime.

http://supreme.justia.com/us/468/420/

A tad bit different than what the author asserts.

All true for anyone other than those under suspicion of DUI. That's the whole point. The author also sourced specific USSC cases.  Incidently the Court cases sourced in the Article weren't brought about because of a determination of guilt but the converse.  Apparently some state judges a little more concerned about the issues than the USSC.

[comradebillyboy]

Did you read the Article or just giving the PC response ? I thought the author did a good job of breaking down the argument of the associated problems with the tests from a legal standpoint and a scientific one. Keep in mind if courts can make "DUI exceptions" it isn't going to be long until other "exceptions" are created. Also the laws are written so Driving basically has nothing to do with it anymore" so your argument is not only silly but moot.

I am not defending/advocating DUI I just think a politically correct approach to laws are a very dangerous road to travel.

Got to agree with you. He is not advocating for the right to drive drunk he is giving a legitimate analysis of the constitutionality of police practices. Remember the police do not much care about your constitutional rights, they have other priorities.

[SSG Snuggle Bunny]

Both sides make good arguments: 4th and 5th amend vs public rules on public roads.

This goes back to a discussion of the arguably bogus exclusionary rules judges have concocted over the years...

I cannot recall the case specifically but essentially a murderer was pulled over on a minor traffic violation (actually the cops thought something was fishy about the driver and fabricated an excuse to stop him). They found the murder weapon under his seat still covered in the victim's blood.

The judge threw-out the evidence ruling they did not have sufficient probable cause and the killer walked.

It's odd that killers can walk but 2 glasses of wine over a hearty dinner can ruin your life.

[formerlurker]

All true for anyone other than those under suspicion of DUI. That's the whole point. The author also sourced specific USSC cases.  Incidently the Court cases sourced in the Article weren't brought about because of a determination of guilt but the converse.  Apparently some state judges a little more concerned about the issues than the USSC.

His assertion:

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.

I posted what the Court actually stated above which clearly not what the author asserts.

The United States Supreme Court, in South Dakota v. Neville in 1983 said, "There’s a DUI exception to the Fifth Amendment. There is no right to refuse and the prosecution can comment freely in trial upon that refusal." And they sent it back to South Dakota. And. like Michigan, South Dakota said, "If you folks in Washington, DC will not protect our citizens, we will rely upon our own state constitution," and they reversed it again based upon the South Dakota constitution’s provisions against self-incrimination. Unfortunately, that’s the last story I have of a state supreme court protecting of its own citizens

Hmmm, not quite skippy:

Held:

1. The admission into evidence of a defendant's refusal to submit to a blood alcohol test does not offend his Fifth Amendment right against self-incrimination. A refusal to take such a test, after a police officer has lawfully requested it, is not an act coerced by the officer, and thus is not protected by the privilege against self-incrimination. The offer of taking the test is clearly legitimate, and becomes no less legitimate when the State offers a second option of refusing the test, with the attendant penalties for making that choice. Pp. 459 U. S. 558-564.

2. It would not be fundamentally unfair in violation of due process to use respondent's refusal to take the blood alcohol test as evidence of guilt, even though the police failed to warn him that the refusal could be used against him at trial. Doyle v. Ohio, 426 U. S. 610, distinguished. Such failure to warn was not the sort of implicit promise to forgo use of evidence that would unfairly "trick" respondent if the evidence were later offered against him at trial. Pp. 459 U. S. 564-566.

312 N.W.2d 723, reversed and remanded.

http://supreme.justia.com/us/459/553/


The reader must conduct their own due diligence when reading hyped up crap like this by actually going to those opinions (big red flag is when the court is not directly quoted in the article) to ascertain it is indeed what the writer contends.  

You can take it for face value, but I am going to pass on that.  

[TheSarge]

Here's a simple solution.

Don't get effin drunk and then get behind the wheel.

Pretty simple huh?

[EastFacingNorth]

...His reasoning is self-serving to the extreme, as are most Libertarian arguments.    You have the right to life, liberty and the pursuit of happiness, but operating a vehicle on a public roadway is not one of them unless you adhere to rules -- as your happy hour could result in the ending of someone's life, liberty and pursuit of happiness.   So that crap ain't going to fly.  

I just love it when people who don't know diddly about libertarian political philosophy try to malign it.

A libertarian would reject the existance of public roads, not to mention a government which presumes to possess the power to license people to operate the property which they have honestly acquired.  So, yes, that crap wouldn't fly because, as my colleagues would put it, you're assuming theorems you've yet to prove.

A "could" doesn't concern a libertarian.  Even an "absolutely will" doesn't.  The only actions which can be justly punished, according to the libertarian view, are actions quantifiably injurious of others which have ALREADY occurred.  Preventative law enforcement has no place in such a concept of justice.

Finally, assuming that the statement "...you have a right to life, liberty, and the pursuit of happiness..." was meant to be some sort of concession to the hypothetical libertarian, you've got it wrong.  It's life, liberty, and property in the original - and of course, this only refers to one right, using three separate names.

[formerlurker]

I just love it when people who don't know diddly about libertarian political philosophy try to malign it.

A libertarian would reject the existance of public roads, not to mention a government which presumes to possess the power to license people to operate the property which they have honestly acquired.  So, yes, that crap wouldn't fly because, as my colleagues would put it, you're assuming theorems you've yet to prove.

A "could" doesn't concern a libertarian.  Even an "absolutely will" doesn't.  The only actions which can be justly punished, according to the libertarian view, are actions quantifiably injurious of others which have ALREADY occurred.  Preventative law enforcement has no place in such a concept of justice.

Finally, assuming that the statement "...you have a right to life, liberty, and the pursuit of happiness..." was meant to be some sort of concession to the hypothetical libertarian, you've got it wrong.  It's life, liberty, and property in the original - and of course, this only refers to one right, using three separate names.

Ah, thank you for proving my point.  I get the platform.  I actually mastered reading comprehension at an early age. 

The la-la-Libertarians don't deal with reality much, it's all rainbows and kittens in their world of absolutes.    Except the world don't turn that way.   

Oh Hell why not?    Ford gives you a car that your purchased with real money that you made sellin' moonshine, then have at it -- you purchased it so why the hell not drive it anywhere, anyhow and anyway you damn well please.   That goes for tanks, planes, and trains too.   You have the money to spend then it's all you baby. 

Roads don't build themselves, yada yada de freakin da.......      I am already bored to tears on this path. 

[Carl]

A "could" doesn't concern a libertarian.  Even an "absolutely will" doesn't.  The only actions which can be justly punished, according to the libertarian view, are actions quantifiably injurious of others which have ALREADY occurred.  Preventative law enforcement has no place in such a concept of justice.

I`m sorry if I am reading this wrong but does that propose that only after the fact should any action be weighed as being injurious.
In other words murder isn`t illegal on its face but the act may be punishable if after the commission of it someone determines it to have been injurious.
Sounds silly but it leaves the door open for situation ethics...XYZ persons life wasn`t determined to be valuable or not enough so that his/her killing proved to be injurious.

Capital "L" Libertarianism is almost as confused and befuddled as its long distance cousin liberalism in trying to set up a utopian society and uses the same suspension of reality to argue its claims.

[SSG Snuggle Bunny]

Here's a simple solution.

Don't get effin drunk and then get behind the wheel.

Pretty simple huh?

A sympathetic notion because drunk drivers are a despicable breed but it smacks too closely to the erroneous, "if you didn't do anything wrong than you don't have ant reason to keep the police from searching your __________ ."

At reflex it is very true but the fact remains: we have the 4th and 5th amendments and presumptions of innocence for a reason. Just because there are such things as drunk drivers does not give LEO's carte blanche in treating the entire balance of the citizenry as potential criminals.

Still, your underlying principle of not being a drunken dickhead out on public roads is laudable

[FlaGator]

Here's a simple solution.

Don't get effin drunk and then get behind the wheel.

Pretty simple huh?

A sympathetic notion because drunk drivers are a despicable breed but it smacks too closely to the erroneous, "if you didn't do anything wrong than you don't have ant reason to keep the police from searching your __________ ."

At reflex it is very true but the fact remains: we have the 4th and 5th amendments and presumptions of innocence for a reason. Just because there are such things as drunk drivers does not give LEO's carte blanche in treating the entire balance of the citizenry as potential criminals.

Still, your underlying principle of not being a drunken ****head out on public roads is laudable

Unfortunately one of the first things that alcohol deadens is rational thinking and inhibitions, a bad combination. Once someone drinks past a certain level they can justify pretty much anything.