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I’ve posted long and hard over the years about the inaccuracy and unreliability of breathalyzers.  See How Breathalyzers Work – and Why They Don’t.  But at least you could always refuse to take the test.  You aren’t required to incriminate yourself, right?  I mean, this is America and we have the Constitution to protect us.

Maybe not.  This looks like yet another in a long list of constitutional rights that are slowly disappearing in DUI cases.  See, for example, The DUI Exception to the Constitution, The Disappearing Right to Jury Trial…in DUI Cases, DUI and the Disappearing Right to Counsel, Are DUI Roadblocks Constitutional? and Forced Blood Draws by Cops: Constitutional?.

House Votes to Criminalize DUI Test Refusals

Topeka, KS.  May 17 —  After a lengthy discussion of constitutional rights, the House has approved a bill that makes it a crime for suspected repeat offenders to refuse a drunk-driving test…

Under Senate Bill 60, drivers with a DUI conviction or prior refusal of a DUI test would automatically be guilty of a misdemeanor if they refuse a test. The penalty would be the same as for a DUI conviction.

The House passed the bill 103-13, but not without some concerns expressed by members that it “tramples” the right to remain silent when accused of a crime.

Rep. Sean Gatewood, D-Topeka, said he’s seen many drunk driving crashes and the harm they cause working as a firefighter and paramedic.

But he said he was not comfortable with making it a crime to refuse to take a breath or blood test.

“These are American citizens and they have the right to remain silent, which this bill sort of tramples on, because if you just stand there silent … then you’re a criminal,” Gatewood said. “You have your 4th and 5th Amendment rights … and I just think there is no greater ridge to stand on than the Constitution of the United States.”

Gatewood proposed to send the measure back to a House-Senate conference committee for further work, but that motion died on a 23-88 vote.

Rep. Pat Colloton, R-Leawood, who carried the bill on the floor, acknowledged that its impact on constitutional rights was an important issue, but on balance she supported it.

She said courts are being clogged with repeat offenders who refuse the DUI test and take their chances with a jury.

Some lawmakers said stopping drunk drivers outweighed the constitutional questions.

“I would gladly walk the line, breathe into the tube and draw my blood if it would get repeat drunk drivers off the road,” said Rep. Bill Otto, R-LeRoy. “This is about people who are killing people.”

“This is not about constitutional rights,” he continued. “What about the constitutional right to life, liberty and the pursuit of happiness? (a phrase from the Declaration of Independence, not the Constitution) When you’re killed by a drunk driver, they’ve deprived you of your life. Death penalty, when you did nothing wrong.”

So….if you refused to incriminate yourself, you would be convicted of a crime and given the same sentence as if you had been convicted of drunk driving.  In other words, you are basically convicted of drunk driving because you wouldn’t incriminate yourself!

Another constitutional right slowly fades away….
 

DUI BLOG

I continue to receive queries concerning a news article I commented on a long ago, "Parking Under the Influence". And the answer is….Yes, you can be arrested in many states for "sleeping under the influence" in your parked car — on the shaky theory that you were probably driving some time earlier and were probably intoxicated at the time.

What was unusual about that Alabama story was that those asleep in their cars had admittedly never driven — but were arrested because they might.The response of MADD and government has been that this helps prevent DUI-related fatalities. As the Alabama sheriff said, "What if they woke up at 2:00am…and decided to drive?" What is frightening, of course, are the obvious ramifications: Where do we stop once we decide to punish folks for what they might do?

In any event, despite the rhetoric about preventing traffic fatalities, the real concern seems increasingly focused on punishment rather than prevention:

Question: If an individual begins driving home from a restaurant and realizes he has had too much to drink, what do we want him to do — if we are truly interested in preventing an accident?

Answer: We would like to see that person pull over and sleep it off.

Question: How do we encourage that conduct?

Answer: We don’t punish him for doing it.

Question: Then why do police continue to arrest and the courts to convict these folks for drunk driving?

There are two issues involved. First, the legal issue: Although under the influence, was the individual driving? The various states have slightly different definitions of what constitutes "driving", but they usually involve "operating" or being "in physical control" of a motor vehicle. Second, the public policy issue: Shouldn’t we encourage conduct that seeks to avoid danger to the public and/or commission of a crime?

Looking at the legal issue first, how can a person be "operating" or "in physical control" of a vehicle if he is asleep? Well, in their stampede to "get tough" on drunk drivers, many states have stretched their definitions of "driving" to the breaking point — and beyond. In State v. Lawrence, 849 S.W.2d 761, for example, the Tennessee Supreme Court held that a defendant who was asleep on the driver’s side of his parked vehicle with the keys in his pants pocket was in "physical control" within the meaning of the DUI statute — and thus guilty of drunk driving. Similarly, in State v. Peterson, 769 P.2d 1221, the Montana Supreme Court held that the defendant was in "actual physical control" of the vehicle when he was found parked off the roadway, asleep in the driver’s seat with the keys in his pocket. There are, fortunately, other courts which have held that this does not constitute driving. See, for example, State v. Bugger, 483 P.2d 404 (Utah).

Most courts do not address the second issue: legalities aside, as a public policy matter should such conduct be punished? This is possibly because judges may feel that is a matter for the legislature to address. But consider the holding of an Arizona court in reversing a DUI conviction:

The interpretation we place on the legislature’s imprecise language is compelled by our belief that it is reasonable to allow a driver, when he believes his driving is impaired, to pull completely off the highway, turn the key off and sleep until he is sober, without fear of being arrested for being in control. To hold otherwise might encourage a drunk driver, apprehensive about being arrested, to attempt to reach his destination while endangering others on the highway. Arizona v. Zavala, 666 P.2d 456.

Makes sense. Of course, angering MADD is not a good way to get reelected to the bench.
 

DUI BLOG