DUI law and double jeopardy

If you get caught driving with  a BAC of .08 or more, how many crimes will you be charged with? The answer is three (3).  The more important question is how many times can you be punished for these 3 crimes.  The answer is two(2) times.  Wait, you say.  Isn’t that double jeopardy?

Yeah, it is. So. It’s DUI, and apparently there’s a DUI exception to the 5th Amendment to the Constitution.

When you are arrested the police officer takes your drivers license and gives you an administrative notice that allows you to drive until your administrative hearing at the Division of Motor Vehicles where your license will be suspended for a number of months on the first offense.  There is no defense to this.  Even if you were stone cold sober.  Blowing .08 or more on the machine satisfies all elements of the offense.  You either did or did not register .08 on the machine.  If you did, license gone.  End of story. That’s punishment number one.

Punishment number two comes in court where you face two separates criminal charges.  One for DUI and another for blowing .08 on the machine.  This latter crime is called “DUI per se.”  Again, no defense.  Maybe you were stone cold sober, but if the machine says you were .08 you’re guilty.  You were already punished for this offense at the DMV hearing.  No matter.  Gonna get you again.

The third offense is the old familiar one, driving while drunk.  They have to prove it.  The machine comes back in here and does all the work for the prosecution.  Machine says you were .08, that’s drunk unless you can prove otherwise.  But here’s the kicker.  You can’t question the machine.  So you’re going to be found guilty.

In all other criminal law you can be charged with multiple crimes for the same transaction but you can only be punished once.  Only in DUI law can you be punished multiple times for multiple crimes all arising out on a single thing that you did.  That’s the DUI exception to the Constitution.

We have former Chief Justice Rehnquist to thank for this.  You see, courts used to have trouble with this concept until a Rehnquist decision from the U.S. Supreme Court okayed it several years ago.

There is one, and only one, viable defense to the charges that stem from a single incident of DUI. If the cop lacked reasonable suspicion to pull you over in the first place, or lacked probable cause to arrest you, then you will have a chance of getting the whole thing thrown out.  But reasonable suspicion can be a burnt out tail light, or failure to signal a lane change.  If a cop follows you for three blocks you will probably do something that will justify the stop.

It’s the roadside sobriety tests that establish probable cause for the DUI arrest.  They are designed for you to fail, even if you’re sober.  Even sober, they’re not easy to do unless you have been keeping your balance high by regularly exercising.

The roadsides, unlike the breath test, are not required.  You should politely refuse.  Then the officer will need to establish probable cause the old fashioned way, with articulable evidence of your visible intoxication and impairment to safely operate a motor vehicle.  Portable breath tests with the hand held thingy most cops carry in their cars are not admissible in court.   You can refuse this one also, but if you refuse the ”machine” back at the police station you will suffer loss of your driving “privilege” for up to a year.  No defense.

So why is this the way things are in DUI law?  Because this is how MADD, the most powerful lobbying group ever known to man, wants it to be.  In fact, they want a whole lot more of this and they’ll probably get it.

I occasionally enjoy a glass of wine with dinner.  I enjoy a beer sometimes.  That means I stay home a lot. That’s probably why I’ve never suffered a DUI charge.  The cost of even the first one can be $10,000 or more, when you add everything up.

Oh, one more thing.  These draconian DUI laws have solved the problem of recidivist drunks on the road killing people, right?  Not.  They have criminalized innocent behavior but have done little to get the real drunks off the road.  It’s still dangerous out there.

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