The DUI Exception to the Constitution

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The South Dakota Supreme Court agreed a few years ago and they said, This gentleman refused to incriminate himself by breathing into that machine and it was reversible error for the prosecutor to comment upon that to the jury and tell them that he refused because he knew he was guilty. Now you're probably ahead of me, guessing the outcome here. It went to the United States Supreme Court. 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.

So, you decide you're going to breathe into that machine. And you do. You breathe into one end and out comes a piece of paper at the other end that says your blood alcohol concentration is .13%. Now, at this point, in most states, the police are supposed to give you a choice as to whether you want a blood sample taken and saved as well, so that you have something for your defense attorney to have examined for an independent analysis.

This is called the Trombetta advisement. They don't give it usually. They're supposed to, but if they don't, no harm, no foul and so it is rarely done. It's called the Trombetta advisement because a few years ago, in 1984, a defendant in California said, Wait a minute, that machine captured my breath and minutes after analyzing it, just purged it into the room air. It could have saved the breath. [Very easy to do: costs about $4.50 per sample utilizing a special kit to preserve it.] It could have saved the breath and then my attorney could have had it analyzed by a separate laboratory by a more exact and reliable testing method. You have destroyed evidence that I could have analyzed and may have been proven my innocence.

This went to the United States Supreme Court too, and in 1984 in the landmark case of Trombetta v. California, the Supreme Court found yet another DUI exception to the Constitution and said Well, it would be nice if they saved the breath, but there's no obligation to do so. And, destruction of that evidence, unless you can prove that it would have been exculpatory, has no impact. But how do you prove it would have been exculpatory if it has already been destroyed? So, today it is all right to destroy the evidence and make sure the defense doesn't get access to it.

Finally, you're rather outraged because you know you're not under the influence. You know you're not over .08% -- which is the standard in California. And in 5 years will be the standard in all of your states because the federal government is telling you that's what it's going to be. Because the Mothers Against Drunk Driving are ensuring that happens.

You decide to go find one of these criminal defense lawyers you've always resented and ask them to represent you in trial. You want to tell a jury of 12 of your peers what happened. You want to give your version. So you tell your attorney, I want a jury trial. Your attorney says, I'm really sorry, but you can't have one. You see we don't have jury trials for DUI cases in this state, because in 1989 the United States Supreme Court in Blanton v. North Las Vegas, a DUI case, said, There is no Constitutional right to a jury trial in a DUI case, so long as it's not punishable by more than six months in jail.

So, in several states today, including Nevada, Louisiana, New Jersey and Hawaii you have no right to a jury trial. And the Mothers Against Drunk Driving and a few other organizations are doing everything they can to make sure there are no jury trials in other states as well.

All right, we've taken a look at what happens to you as you go through the process in terms of any Constitutional rights you thought you had. And if you'd been charged with burglary, murder, rape, you would have had those rights. At least for now, until those rights are taken away as well, utilizing the same necessity argument used for DUI prosecutions.

Now, let's take a look at what the crime of DUI really is. What is the offense you just committed? I will tell you that when I have clients come in the door, almost none of them know what the crime is, and probably half of them don't know if they're guilty or not.

In the beginning there was a law. That law said Thou shalt not drive under the influence of alcohol. Period. It was a good law. We needed it. It addressed the problem. It was fair. Unfortunately, there were some defendants being acquitted. And so an inventor came along and said, Well, I've got this great little gizmo here. I call it the Breathomatic. It's a box and if you breathe in this end, out the other end comes this piece of paper and it'll tell you exactly how much alcohol is in the person's blood.

Well, that sounded pretty neat. And so legislators and prosecutors approached the American Medical Association and said, We've got this wonderful machine. Can you tell us at what level of blood alcohol concentration a person is impaired in their ability to drive a vehicle? And the AMA said, After extensive research, it is 0.15 grams percent. This was about 60 years ago... 0.15 percent.

Well, that was okay for a while, but a whole lot of people still were not getting convicted. Part of the problem was there was only a presumption that you were under the influence. In other words, if you were over .15% the jury could accept that you were under the influence, or they could reject it and say other evidence shows that you weren't. The second problem was that a lot of people were coming in at .13, .14, .12. And a third problem is that you may have been .15 at the time of the test in the station, but what were you an hour earlier when you were driving?

So, they went back to the American Medical Association a few years later and said, Are you sure about that .15? Couldn't it really be a little lower? And the AMA said, You know, you're right. It's .10. Now, the human body, to my knowledge, had not changed in those 20 years, but certainly the AMA's research did. And responded to considerable political pressure. So, now jurors were told that they could presume guilt if there was a .10%. A dramatic change in the number.

Unfortunately, there were still criminal defense lawyers out there and there were still acquittals, and the Mothers Against Drunk Driving, a very effective, very well financed organization, as some of you here know, was very successful by working through a federal agency called National Highway Traffic Safety Administration in putting pressure on states to further drop it to .08%. And as I indicated earlier, about a third of the states have done exactly that, the others are rapidly following suit.

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