Wednesday, June 8, 2011

DUI Laws and the Constitution: It’s All About Exceptions

When it comes to DUI laws and the Constitution, it’s all about exceptions.

If you have been arrested for DUI, the police officer will recite your Miranda rights. But as
soon as they’ve been said, they’re as good as forgotten. That part about not being compelled to
testify against yourself? Well, actually, if you have already once been pulled over and refused a
breathalyzer test, if you refuse again, you will be charged with a misdemeanor.

The argument justifying this procedure is of course the concept of implied consent. In Florida,
when you apply for and accept a driver’s license, you concede that you will submit to chemical
testing if pulled over and arrested with probable cause. However, it makes little sense that the
first case of refusing a breathalyzer is treated as an administrative violation, and the second,
based merely on the fact there exists a first, is treated as a criminal offense. Basically, you can
refuse once, but count on being prosecuted if you refuse twice, a message that is confusing at
best.

Additionally, the Fifth Amendment of the Constitution states that a person cannot be forced to
give evidence implicating himself. DUI cases provide a notable set of exceptions to this tenet, in
which the argument has been made that chemical evidence does not count. However, physical
evidence is a damning and personal, in most cases more so, than verbal confession, so why
should this count?

And what about that part that guarantees your right to counsel? Well, actually, it’s more
like counsel with certain conditions. After you have been arrested, in many cases, you will
be denied the right to speak with your lawyer until the officers are finished with you. This
could be a matter of hours, waiting for tests and such, and it could involve being behind bars
and in handcuffs. Not to mention that asking the opportunity to speak to with a lawyer could
communicate to an officer that you are refusing to take the breathalyzer test. And it might just
be too late if you change your mind and decide you’ll submit to a test.

In DUI cases, miscommunication could mean conviction and Constitutional loopholes abound.
Drivers getting pulled over, hoping to plead the fifth, should know that doing so is, in this case,
against the law.