“The DUI Exception to the Constitution”

The DUI Exception to the Constitution, posted by Lawrence Taylor on his DUI blog in 2005, contains a persuasive and often cited speech about the state of our nation’s drunk driving laws. When it comes to DUI’s, there are a different set of rules and the Constitution does not always apply.
The Fourth Amendment says that police officers cannot stop and detain a person unless they have probable cause to believe the person has committed a criminal act. However, in Michigan State Police v. Sitz, the U.S. Supreme Court found that there is a DUI exception for roadblocks, allowing police to stop and detain vehicles with no probable cause whatsoever. On remand to the Court of Appeals of Michigan, however, the Court of Appeals found that these roadblocks were unconstitutional under their State Constitution.
If you watch television, you know that often police will read what is called Miranda rights to a person they are arresting. You have the right to an attorney, and the right to remain silent, for example. Any time a person is in custody, ie handcuffed on the side of the road or in a police car, Miranda requires that the officer inform the person of their basic constitutional rights before asking questions. If the Miranda rights are not given to the person, any statement they make will be excluded from trial. But in Berkemer v. McCarty, the U.S. Supreme Court found another DUI exception to the Constitution – essentially saying, “we don’t know when Miranda is supposed to be given in DUI cases, but it is clearly some time later than in other cases.” (from Lawrence Taylor). Even though an officer has no intention of allowing a motorist to leave, and every intention of arresting the motorist, he is not required to read Miranda rights during the roadside detention.
In South Carolina the officer must read the Miranda rights before the field sobriety tests are given. But, although the officer says, “you have the right to an attorney,” you do not have the right to an attorney. Tell the officer you want to consult your attorney and see what response you get. Again, when you are asked to blow into the little black box, tell them that you would love to do so, but wish to exercise your right to consult your attorney. In South Carolina, you will be denied your right to an attorney at this most critical stage of a DUI proceeding, when you need to seek advice as to whether to submit to breath or blood tests, or seek an independent test.
The Fifth Amendment guarantees all of us the right not to incriminate ourselves – not only do we have this right, but if we exercise it, the prosecutor at trial cannot comment on our decision to exercise our constitutional right. Except in a DUI trial. In South Dakota v. Neville, the U.S. Supreme Court found a DUI exception to the Fifth Amendment – there is no right to refuse a breath test, and if you do refuse the breath test, the prosecutor can comment on it to the jury. (On remand to the State Supreme Court, South Dakota held that their State Constitution protected the right against self-incrimination, even if the U.S. Constitution no longer does.) Not only will the prosecutor be allowed to comment on your exercise of your right not to incriminate yourself, but you will be punished for it under South Carolina’s implied consent laws.
Some states have a DUI exception to the Sixth Amendment right to trial by jury, believe it or not. If you are arrested for driving under the influence in New Jersey or Nevada your fate will be decided by a judge without the benefit of a jury of your peers.
There is a different set of rules when it comes to DUI cases. Over and again, DUI lawyers urge one another to be careful which cases they decide to take up on appeal, for fear that the appellate courts will be given another opportunity to take away more of our constitutional protections in the name of DUI prosecution, creating precedents that must be followed in future cases. As Taylor says, “rights that are lost in a DUI case today can be lost in any other case tomorrow.”
The above observations on the DUI exception to the Constitution are all drawn from DUI lawyer Lawrence Taylor’s 2005 blog entry, which I encourage everyone to read. He ends his piece by paraphrasing a famous quote from pre-war Germany:
“First they came for the drunks, but I was not a drunk, so I did not speak up . . .”

2 Responses to ““The DUI Exception to the Constitution”

  • WHO MADE THE EXCEPTION RULES TO THE CONSTITUTION FOR DUI LAWS. IF CONGRESS DID THIS I DO NOT REMEMBER IT.
    THE SUPREME COURT JUDGES ARE FULL OF IT. MIRANADA, IS READ AS SOON AS APERSON BECOMES A SUSPECT. AN IN A DUI WE ALL KNOW! WELL! JUST AFTER THE FIELD SOBERTY TEST. I BELIEVE YOU SHOULD ALL WAYS PLEA THE 5TH, AND LET THEM CHARGE YOU WITH REFUSAL. THEN LET THE NEWS MEDIA YOU JUST USING YOUR CONSTITUTIONAL RIGHTS.

  • STOP WRITING IN ALL-CAPS. IT UNDERMINES YOUR CREDIBILIITY AND MAKES YOU SOUND LIKE A RETARD.

Leave a Reply

Your email address will not be published. Required fields are marked *