Most Americans believe that there is a constitutional right against being forced to provide evidence against yourself. And certainly, most Americans could not imagine that a citizen arrested for a criminal offense could actually be charged with a separate criminal offense of not giving possibly incriminating evidence — in other words, if you don’t provide evidence against yourself, you will be convicted of refusing to do so and be thrown in jail. Not in the U.S., right?
Wrong. But then most Americans aren’t familiar with "the DUI Exception to the Constitution".
Most people don’t realize it, but it is a criminal offense in a growing number of states for a citizen arrested for drunk driving to refuse to give a breath or blood sample; in most other states, a refusal increases the penalty for the DUI itself. After the DUI arrest, the police will tell the suspect to submit to a blood or breath test; if he refuses, he will be charged with drunk driving — and with refusing to submit to testing. And he can be convicted and sentenced for both. In some states, the penalty for refusing is the same as for the DUI offense itself.
Wait a minute….Is it a criminal offense to refuse to provide semen in a rape case? Nope. Can you be thrown in jail for not providing a hair sample for DNA analysis in a murder case? Uh-uh. Then why only in drunk driving cases? Ask MADD — and the politicians who cater to them.
The New Jersey Supreme Court addressed this issue a couple of weeks ago:
Judge: Failure to Provide Proper DUI Breath Test Akin to Refusal
Gloucester Co., NJ. May 27, 2011 — The failure of a motorist suspected of drunk driving failing to provide proper breath samples — of sufficient volume and length — constitutes a refusal that enables police to file an additional charge, the state Supreme Court ruled Thursday…
Woolwich Sgt. Joseph Morgan pulled over a motorist on Nov. 29, 2007 for allegedly swerving between the east and westbound lanes of a road within the township’s borders. The motorist cited a physical handicap that would prevent him from performing field sobriety tests.
At the Woolwich station, he consented to provide breath tests that would eventually be administered by a Logan Township officer. The motorist provided samples of 1.2 liters over 4.9 seconds and 1.2 liters over 3.3 seconds, Stern noted in his opinion. The officer needed a minimum 1.5 liter sample.
So unlike with any other criminal offense, a DUI suspect can be charged with drunk driving….and with refusing to give the officer possibly incriminating evidence.
It gets worse.
The various breath machines all require the suspect to breath through a narrow breath tube hard enough to lift an inner piston, permitting the sample to enter the sample chamber. The reason is that blowing hard forces the suspect to produce the air from the deepest part of his lungs (alveolar air) — air with the highest percentage of alcohol; the harder the blow, the higher the blood alcohol level. When there is insufficient pressure from the suspect to activate the sample-capturing mechanism, the machine will signal that the test is invalid. At that point, the officer assumes that the suspect is purposely not breathing hard enough in order to avoid incrimination, so he discontinues the test and reports it as a refusal.
But how does the officer know that the reason for the failure to produce a breath sample is intentional? He doesn’t, of course; being a police officer, he merely assumes it. But the amount of pressure required to lift the valve can be misadjusted, and many of them begin sticking after constant use. And the tube can be too narrow; the manufacturers of one breath machine, the Intoxilyzer 5000, had to enlargen the breath tube in later models because of large numbers of complaints.
Many individuals, particularly the elderly and cigarette smokers, simply do not have the lung power. And then there are the millions suffering from emphysema or asthma.
Researchers in one scientific study of asthmatics found that only 2 of 51 subjects were able to breathe hard enough to activate a breathalyzer. P.J. Gomme et al., “Study into the Ability of Patients with Impaired Lung Function to Use Breath Alcohol Testing Devices”, 31 Medical Science and Law 221 (1991). In other words, 49 of them would have been prosecuted and punished for “refusing” a breath test.
The law, in its wisdom and majesty, continues to punish citizens for not breathing hard enough to activate these machines — with little or no evidence as to the reasons why. And as is common in DUI cases, the reasons are presumed (see “Whatever Happened to the Presumption of Innocence?”) — and, of course, who is going to believe the defendant’s denial?
Welcome to the insanity of MADD’s "war on drunk driving".
(Thanks to Dr. Ronald Henson.)
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