The DUI Exception To The United States Constitution

I’ve been driving in Colorado and Wyoming fairly extensively this Labor Day weekend. The cops are out in force looking to break previous records in DUI arrests. The freeway marquees are blaring such threats as “The Heat Is On,” or “If You Drink and Drive We Will Get You.” In Wyoming at least the wording is a little less in your face with, “Please Don’t Drink and Drive.”

If you are a member of MADD or a supporter you probably think tough DUI enforcement is a good thing. You do so because you want to get drunk drivers off the road. We all want to see drunk driving reduced. We’d like to see it eliminated if that were possible. But we all don’t support current DUI laws or enforcement practices because a closer look reveals that it’s not about getting drunks off the road. Rather, it is about increasing the power of the zealots at MADD, maintaining an enormously successful cash cow for local governments, and getting as many DUI convictions and license suspensions as possible. Many if not most of those being convicted, losing their driving privileges, paying very high fines, losing their insurance, and suffering the many other but largely unknown collateral consequences of a DUI conviction are not guilty of “drunk” driving and are not any part of the drunk driving problem on the roads. They are social drinkers whose innocent and quite harmless conduct has been criminalized by an insane crusade, fueled by hysteria, greed and diehard fanaticism.

The truth is that the BAC limit of .08 is not supported by science. It is pure politics. In almost all of the horrendous car crashes caused by drunk drivers, crashes in which innocent people are killed or maimed, the guilty drunk driver is no where near a .08 BAC. The statistics invariably show BAC levels of three to four or even five or six times that level. The problem is the recidivists who are truly drunk with saturation levels of alcohol in their systems sometimes to the point of near death from alcohol poisoning. Convicting social drinkers who present no danger to their fellow citizens on the highway does nothing to lessen the danger we all face from drivers who are actually drunk.

Not only do present DUI laws and enforcement policies waste valuable resources while ignoring the problem, these laws and practices by police and courts are shredding the United States Constitution. Most people are not aware, for example, that in most states you may be requested to take a breathalyzer test without probable cause to believe that you may be driving drunk. If you refuse to blow into the machine you will lose your driving privileges for at least 6 months and up a year in some states. All without any proof that you were driving drunk. Without a trial, or even a hearing in court. The license suspension is an administrative matter with the State transportation authority, and even though you may request an administrative hearing the issue is whether you refused the test, not whether you were impaired by alcohol. Alcohol impairment is irrelevant to whether you keep your driving license or lose it.

Another issue I haven’t even mentioned is the fact that the machines are highly unreliable and inaccurate in converting breath alcohol levels to blood alcohol measurement because they use a conversion ratio that represents an average of all persons in the population and which necessarily will not be accurate to the great majority of individuals tested. The machine may convict you not of being over .08 BAC, but of not being average.

California attorney Lawrence Taylor is the author of the leading legal treatise on drunk driving laws and has written extensively on the subject. His online article The DUI Exception to the Constitution is highly readable and informative. Here is a short excerpt:

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 accordioned 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.

I encourage anyone whose interest may have been sparked to read the whole thing here, and to check out Mr. Taylor’s DUI Blog.

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