The DUI Exception to the Constitution

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.

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